ABK v QBE Insurance Ltd
[2021] NSWPIC 187
•15 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | ABK v QBE Insurance Ltd [2021] NSWPIC 187 |
| APPLICANT: | ABK |
| RESPONDENT: | QBE Insurance Ltd |
| MEMBER: | David Ford |
| DATE OF DECISION: | 15 June 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Miscellaneous claims assessment; whether the insurer is entitled to reduce statutory benefits under section 3.38 of the Motor Accident Injuries Act 2017; contributory negligence; insured driver visited the claimant at his home; conversation became heated; went to his vehicle; shut the door; reversed onto the driveway; claimant fallen to the ground; spun the wheels in the driveway; Held- accept the claimant’s version; insured driver’s vehicle did collide with him, causing him to lose his balance and fall to the ground; 10% blame for the claimant. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.38 of the Motor Accident Injuries Act 2017 (NSW), the Insurer is entitled to reduce statutory benefits payable in respect of the motor accident by 10%. 2. Effective Date: This determination takes effect on 8 June 2021. 3. Legal Costs: The amount of the claimant’s cost assessed in accordance with Motor Accidents Injuries Regulation 2017 is $1,826.00 incl GST. |
REASONS FOR DECISION – MISCELLANEOUS CLAIMS ASSESSMENT
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) (g) of the Motor Accident Injuries Act 2017, about whether the Claimant’s entitlement to weekly statutory benefits should be reduced after 6 months because of the Claimant’s contributory negligence.
The facts of this accident are, on 2 January 2020, at about 11:00am, the insured driver visited the claimant at his home in West Nowra NSW.
Upon arrival at the claimant’s home, the insured driver parked his vehicle at the end of the driveway on the nature strip side, which is apparently outside the boundary of the claimant’s property.
Initially, there was an amicable conversation between the claimant and the insured driver, however, the conversation subsequently became heated, and the insured driver decided to leave the claimant’s home.
The insured driver went to his vehicle, started the engine, and the claimant stood between the Insured driver and the still open door preventing the insured driver from closing the door. It is alleged the claimant was upset and did not wish the insured driver to leave.
The insured driver then drove the vehicle forward, about a metre so he could clear himself of the Claimant and shut the door. The insured driver then reversed the vehicle with the door shut onto the driveway, and it is submitted as he was reversing, but well clear of the claimant, the insured driver looked ahead and had noticed the claimant had stumbled and fallen to the ground.
The insured driver submits there was no contact with the claimant and his vehicle once he had put the vehicle in motion.
The claimant submits there was no contributory negligence on his behalf as he was expecting the vehicle to be driven away from him and, in fact, he was struck by the vehicle being driven by the insured driver.
It is further submitted on behalf of the claimant that he has not contributed to the accident by failing to move away from a position of danger as it was only apparent to him that the vehicle travelled towards him and not away from him mere moments before he was struck by the vehicle.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and reply and in addition I have received a further statement from the insured driver dated 29 March 2021.
10. In my fifth preliminary conference report dated 27 April 2021, I directed the solicitor for the claimant to lodge any further submissions on the portal upon which they will seek to rely on or before 7 May 2021. I further directed the solicitor for the insurer to lodge on the portal any further submissions upon they will seek to rely on or before 15 May 2021. No further submissions were lodged on the portal.
INSURER SUBMISSIONS
11. Firstly, the solicitor for the Insurer submitted the following passage from the police report, which is relevant to my determination of this miscellaneous claim. I refer to page 3 of the report which states as follows:
“The POI states, however, that when he attempted to leave the victim stood on the doorway of his vehicle and for period of minutes and refused to let him leave. The POI states, that when he got the chance, he was able to close the door and reverse off the driveway. He states there was no contact between his vehicle and the victim, although he saw the victim stumble as he drove out. The victim In the matter is very overweight and appeared unsteady on his feet when police were interacting with him and him falling without a vehicle colliding with him would seem feasible”.
12. I refer to the statement by the insured driver, dated 11 November 2020, and I note the following paragraphs:
9 “After starting the vehicle, the claimant stood between me and the still open door, preventing me from closing it. He was very angry and was not wanting me to leave.
10 I drove the vehicle forward about a metre so I could be clear of him and shut the door. I then reversed with the door shut, onto the driveway.
11 As I was reversing, but well clear of the claimant, I looked ahead, and he appeared to stumble and fall.
12 I am quite sure there was no contact between the claimant and my vehicle once i put it in motion.
13 There were no witnesses to my knowledge”.
13. I refer to the statement of the insured driver, dated 29 March 2021, and I note the following paragraphs:
7“He also accurately states that I drove forward (about 1 Metre) so I could shut the door, which I did.
8I did not drive the vehicle forward at that point as alleged. I reversed in onto the street.
9ABK did not at any stage turn to walk towards his home or down his driveway, as alleged. Nor did he position himself, at any stage, in front of my vehicle. At all relevant times he stood to the right of the utility.
10As I reversed, I glanced at the windscreen and observed ABK stumble and fall.
11There was absolutely no contact between ABK and any part of my vehicle once I was able to close the door”.
CLAIMANT’S SUBMISSIONS
14. In the application for personal injury benefits, dated 26 February 2019, the claimant has provided a lengthy description of the circumstances surrounding the subject accident. I note the following from the description given by the claimant:
“So, when he was to drive away from the driveway, still yelling and swearing thinking he would reverse but his vehicle drove forward actually spinning the wheels in the driveway, hitting me front on then reversed, saw me on the ground but drove away. He had no passengers. I don’t have a rego number but late model Japanese white Ute. The person in question is the insured driver. XXX Street, Harden. The vehicle would have suffered panel damage. I do not wish to contact Nowra Police re statement, but I do have a police report number, 30408? This email has taken over 2 hours to complete as I am still very slow physically and mentally”.
I note the initial submissions made by the solicitor for the claimant dated 27 August 2020, in their submissions it is noted the police officer who compiled the report was not present at the incident and was not an eyewitness to the incident and is further noted the report reveals the police only spoke to the insured driver by phone, 11 days after the accident.
15. I also refer to the statement of the claimant dated 24 February 2021. I refer to following paragraphs:
Paragraph 8 - “I was aware I could not touch him or his vehicle. He started the vehicle and moved it forward into my property and then slammed the driver’s door shut and stopped the car. I turned to walk to my home and walked from the grass onto and down my driveway. I was expecting him to reverse out of the driveway and leave. Instead, without any warning to me he drove the vehicle forward into me, hitting me just below my left hip and throwing me to the ground. I do not know if that was deliberate or an accident by him not putting the car in the right gear, but he was angry at the time when he was leaving.
Paragraph 9 – I have attached photos of some of the server bruising and an x-ray report dated 6 February 2020, showing I sustained a fractured right rib. After I was thrown to the ground after being hit by the insured driver’s vehicle, I tried to gather my thoughts and I looked at his vehicle. It was then stationary. I was very scared. I initially thought he would have another go and run over me, but he just looked at me through the windscreen and reversed into the street and departed.
Paragraph 11 – I was unable to confirm or deny any damages sustained to the vehicle as a result of it hitting me, but there definitely was a collision with the vehicle hitting me, a set out above and in my application for personal injury benefits.
Paragraph 12 – On the day of the car accident I rang Nowra Police Station. I spoke to the Nowra Police switch board to report the accident and was advised that someone would visit my house.
Paragraph 13 – I had a lump on my head from the accident, as well as injuries to my chest, ribs and legs. The knock to my head made me feel confused and unsteady on my feet. My wife was not home at the time. After the accident, I had extreme pain in the chest and difficulty in breathing. I also experienced an increase in pain when I coughed and tried to bend over. I decided to wait for, my wife, Mrs ABK, to come home from work. I took some medication (Panadol and Codeine) and fell asleep, while I was asleep, apparently Senior Constable Derek Hopson and Senior Constable Potts attended my home. I was not aware that Senior Constable Derek Hobson and Senior Constable Potts had called at my home until my wife told me so.
Paragraph 14 – I attended Doctor Abu, at Worrigee Medical Centre. At 4:30pm 2nd January 2020, as I was unable to drive. My wife drove me there. I was suffering from severe pain in the chest, legs, back and I was unsteady on my feet. I again attended the Medical Centre seeing Dr Abu again on 9 January 2020 at 9:40am. He documented the injuries.
Paragraph 15 – I had severe bruising of the lower torso.
Paragraph 16 – The following day, 3 January 2020, I rang Nowra Police Station again. During the 3 January 2020, Senior Constable Derek Hobson and Senior Constable Potts attended my home. When the police came, I was unsteady on my feet, because only the day before I had been hit and knocked over by the insured driver’s vehicle and had sustained huge bruising from the hip to the knee, a cracked rib, and was experiencing back pain. I was still suffering some giddiness in the head.
Paragraph 17 – I outlined, verbally, the circumstances of the accident to both the police officers and furnished details of the driver’s name, driver’s address, and phone number. I gave some details of the offending vehicle but not the registration number as I did not know it. I know the driver who had driven and collided with me in my driveway.
LEGISLATION
16. In making my decision I have considered the following legislation and guidelines:
·Motor Accident Injuries Act 2017 (NSW) (“the Act”).
·Motor Accident Injuries Regulation 2017.
·Motor Accident Guidelines 2020.
·Civil Liability Act 2002 (NSW).
REASONS
17. In assessing contributory negligence, it is necessary to weigh the respective acts of the claimant and the insured driver, and to determine the degree of casual potency of each. As regards to the insured driver, he was in control of the vehicle and was well aware of the fact the claimant was upset and had tried to impede him from leaving the premises.
18. It appears from observations made by the police officer who interviewed the claimant, that the claimant may not be a very agile person. However, I place no weight on the observation made by the police officer as referred to in paragraph 11, that the claimant could fall without a vehicle colliding with him, as I accept the claimant’s recollection of his physical condition in the days following the accident, as set out in paragraph 15 of the claimant’s submissions.
19. Furthermore, in paragraph 14 of the claimant’s submissions, he refers to the fact the insured driver drove his vehicle forward and spun the wheels in the driveway. The action of spinning the wheels is not denied in either of the statements made by the insured driver.
20. I find that the interaction between the claimant and the insured driver had become quite heated and the insured driver was keen to leave the claimant’s premises as quickly as possible. I accept the claimant’s version that the insured driver’s vehicle did collide with him, causing him to lose his balance and fall to the ground and therefore, there is clear negligence on the part of the insured driver, but I am not satisfied the claimant has not contributed to his accident by failing to move away from a position of danger when it became apparent that the insured driver wished to depart the premises as quickly as possible. There is nothing to indicate that his ability to move away from the position of danger was impeded, noting he was on foot at the time.
21. In my view, a fair apportionment of blame between the claimant and the insured driver is 90% for the insured driver and 10% for the claimant. Therefore, the claimant has contributed to his injuries to the extent of 10%.
COSTS AND DISBURSEMENTS
Costs are awarded in accordance with the Motor Accident Injuries Act regulation 2017 Schedule 1, and I award the claimant his costs which I assessed at the maximum regulated fee.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
23. For the purposes of section 3.38 the Insurer is entitled to reduce the statutory benefits payable in respect of the motor accident by 10%.
24. Effective Date: This determination takes effect on 8 June 2021.
25. Legal Costs: the amount of the claimant’s costs assessed in accordance with Motor Accident Injuries Act regulation 2017 is $1,826.00 incl GST.
David R Ford
EGM Member (Motor Accident)
Personal Injury Commission
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