ABL v NRMA Ltd
[2021] NSWPIC 188
•15 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | ABL v NRMA Ltd [2021] NSWPIC 188 |
| APPLICANT: | ABL |
| RESPONDENT: | NRMA Ltd |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 15 June 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; lost control of his motor vehicle and collided with a tree; unknown vehicle merged into his lane; claimed brake failure; unable to determine whether there was mechanical fault with the brakes before the collision; car very heavy with equipment; vehicle was serviced regularly; momentary inattention; night shift; Held- accepted there was some brake failure; claimant was not mostly or wholly at fault. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.28 and 3.11 the motor accident was not caused wholly or mostly by the fault of the injured person. 2. Effective Date: This determination takes effect on 11 June 2021. 3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1826 inclusive of GST. 4. A brief statement of my reasons for this determination are attached to this certificate. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(e) of the Motor Accident Injuries Act 2017 (the Act), about a claim lodged by the injured Claimant arising from a motor accident which occurred on 23 April 2020. The Claim was lodged with the nominal defendant on 11 May 2020.
The Insurer issued a liability Notice - Benefits up to 26 weeks on 25 May 2020 declining the Claimant’s benefits up to 26 weeks from the date of accident as due search and enquiry had not been made to establish the identity of the unidentified vehicle.
Subsequently on 26 May 2020 the Claimant provided the Insurer with evidence of the efforts to identify the motor vehicle concerned and due to the Insurer failing to make its refusal in the prescribed time, lost the right to reject the claim.
A further liability notice issued on 14 December 2020 declining the Claimant’s claim for statutory benefits after 26 weeks from the date of the accident as he was considered to be wholly at fault for the motor vehicle accident on the basis that he had lost control of his motor vehicle and collided with a tree.
Internal review of this decision was requested on 15 December 2020. The Insurer conducted a review of the decision and on 29 December 2020 affirmed the original decision.
The Claimant lodged with DRS an application for review.
The accident
At approximately 7.40am on 23 April 2020 the Claimant in his Toyota Hilux was travelling in a southerly direction along Lane Cove Road, Ryde in the middle lane (lane 2 of 3) at approximately 60-70km/h towards Auburn. The Claimant contends that an unknown vehicle in the left lane (lane1) merged into his lane (lane 2) in effect cutting him off whereby he had to move into the left lane (lane1) to avoid colliding with the vehicle. Whilst in the left lane, he lost control of his vehicle whilst attempting to avoid the collision and mounted the footpath and collided with a tree.
Documents considered
I have considered the documents provided in the application and the reply and any further information provided by the parties including final submissions uploaded onto the PIC Portal on 10 June 2021.
Police Report [R7]
Police attended the scene. The party responsible for the accident was the Claimant but no action was taken due to the allegation of brake failure.
A statement from an eye witness, EC states when she spoke to the Claimant “he claimed brake failure”
Police attended the holding yard and examined the vehicle. The report noted “The brake pedal was pushed and found that it did go to the ground and had no pressure in it. The brake reservoir was checked and found to be empty. It is not possible due to the extent of the damage to vehicle ..to determine whether this was an issue before the collision or as a result of the collision.”
A further statement taken by M & A Investigations for the Insurer [A5] Leading Senior Constable David Potter who has attended the scene confirmed a statement had been provided by the Claimant on 8 May 2020. Confirmation that the Police did not take any further action because they were unable to determine whether there was mechanical fault with the brakes before the collision.
Ambulance record [R8] reported
“single male driver occupant of vehicle driving approximately 70km/hr when pt stated his brakes failed him, car head first into power pole. Moderate/sever bonnet intrusion and damage however nil cabin intrusion..”
Claimant’s statement dated 24 June 2020 [A5]
The relevant paragraph I note as:-
“32. I was driving in the middle lane of three lanes. I was going about 60 to 70 km per hour.
33. It was in the morning and the traffic was busy. It was a Thursday. I was driving in heavy traffic. There was a car next to me in the left lane and the car moved over to my lane. I then saw it had its indicator on. The car was pretty close to me. The car was in front of me and when it moved over to my lane I realized I couldn’t stop without hitting him so I moved over to the left lane because traffic was slowing down”.
34. When I changed into the left lane (lane one of three) my car was very heavy with equipment and it pulled over towards the footpath. I then corrected the steering and started moving back over to the middle lane. I thought I was going to hit some other cars in the heavy traffic. I corrected the steering again to the left and started losing control and within a few seconds I ran off the road up onto the footpath and into a tree.”
…
45. Maybe I was not concentrating. I have been doing a night shift for a long time now.”
To the best of his knowledge the headlights, indicators, tyres, steering and brakes were in good working order.
Statement of EC [R9]
The relevant paragraph of note were:-
“22. I was driving to work and I was in lane three of Lane Cove Road heading south. I was approaching the lights at Goulding Road. I had stopped due to stopped traffic. I was crawling. The lights had been red and the cars had been stopped.
23. The vehicles in front of me started to move again. Just as I started to move there were no vehicle in lane two, the middle lane, so I then saw the Claimant in lane one. I saw him as he was directly level with me. That was about ten metres back from where the Claimant hit the tree. There were no vehicle in front of him”
24. “As I was just starting to move the Claimant who was beside me then moved forward of me as he was travelling faster than me. He didn’t stop and continued at the speed he was driving. He wasn’t driving excessively and I think he was he was going about 50 or 60 k per hour.
25. ...from when I first saw him to when he hit the tree it was at the most two seconds. He travelled about ten meters from when I first saw him.
27. The Claimant appeared to drive normally in lane one and then all of a sudden he swerved off the road and the front of his vehicle ended up on the kerb and he hit the tree”.
…
35. I asked him “What happened, did you hit your head? Do you have pain anywhere in particular? He pointed to his chest and stomach are. The Claimant said “I don’t know, I think my brakes failed”.
36. Lane Cove Road is sloping downhill so he would have had to apply his brakes coming to the intersection. There were no cars directly in front of him but there were cars in front of me and some in lane two at the intersection. I cant recall whether there were any vehicle in lane one ahead of him at the intersection. There were none directly in front of him.”
Submissions of Claimant
The Claimant submitted that he was neither wholly nor mostly at fault in the motor accident of 23 April 2020 in which he suffered injury and that it was a blameless accident relying on AAI Limited v Singh (2019) NSW SC 1300.
The claimant submitted he took all necessary steps to avoid a collision.
The accident was completely out of his control. Another vehicle cut him off and his brakes subsequently failed and the heavy load ultimately led to his vehicle not being stable, dragging him to the left, resulting in him mounting the kerb and colliding with a tree.
The Claimant was driving along Lane Cove Road, when another vehicle moved from lane one to lane three effectively cutting him off. To avoid colliding with the second vehicle, the Claimant swerved to his left from the middle lane and when in lane one he has mounted the kerb and collided with a tree. The second vehicle that cut in front was the vehicle at fault as they had overtaken a moving vehicle without exercising proper caution, ultimately resulting in the subject accident. The Claimant submitted the finding that he was the driver at fault is incorrect. He was not driving erratically and was forced to swerve to avoid a collision.
In relation to the last service of the vehicle was more than one month prior to the accident. During that time, there is no evidence of which other employee drove that vehicle or whether any other employee complained of brake issues. The Insurer has not engaged any other experts to determine whether the brake fluid leaked before or after the accident and there is evidence that the brake pad was pushed to the floor. This suggests that the claimant was in fact attempting to brake, however was unsuccessful and this contributed to the accident. Therefore, despite the brake pads being replaced, there appears to have been a mechanical failure, consistent with the claimant's account that the brakes did not work, as supported in EC's statements.
Submission of Insurer
The Insurer maintained the position that the Claimant was wholly at fault for the accident occurring and that there was a lack of attention on the part of the Claimant.
There were inconsistencies in the histories provided by the Claimant as follows:
(a) On 8 May 2020, he stated after having moved to the left lane (lane1) he attempted to brake to avoid colliding with a vehicle in the left lane at the red traffic light ahead. Due to the heavy load he could not brake, so he swerved left mounted the footpath and collided with the tree.
(b) On 24 June 2020 he reported that after moving to the left lane, he started merging back to the middle lane however realise that he would collide with vehicles travelling in the middle lane. To avoid the collision, he swerved to the left whereby his vehicle lost control, veered onto the footpath and collided with a tree.
(c) Attributed not concentrating, potentially fatigue from completing a night shift as well as brake malfunction.
(d) It was highly likely on the available evidence that the Claimant failed to apply his brakes in sufficient time to control his vehicle and noting the evidence of EC that no other vehicles were in the vicinity of the Claimant prior to him mounting the kerb, he was solely responsible for the collision and wholly at fault.
(e) He breached his duty of care by failing to safely manoeuvre and control his vehicle, failing to keep an alert and proper lookout and to pay attention to the changing road conditions ahead and the emerging circumstances.
(f) The accident was caused wholly by the fault of the Claimant.
Cases relied upon by the Insurer:
(a) Vairy v Wyong Shire Council [2005] HCA 34, 59 ALJR 492, the duty of the driver of a motor vehicle to users of the roadway is to take reasonable care for their safety having regard to all circumstances of the case.
The reasonable care that a driver must exercise when driving a vehicle on the road requires as the majority observed in Manley v Alexander [2005] HCA 79 at [12]:
“..that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”
(b) Hossain v Mirdha [2015] concerning a Plaintiff who braked and swerved the vehicle in an attempt to avoid hitting a dog that was crossing the road, which resulted in a collision with a parked truck. Elkhaim DCJ held that the act of swerving the vehicle ..was a cause of the collision. It was not the sole or primary cause of the accident but was an act that caused the vehicle to collide with the rear of the parked truck, and accordingly, the plaintiff was not entitled to rely upon the blameless accident provisions by reason of section 7E.
Further upon the production of the service log at my request the copies of services undertaken produced by MG the vehicle owner, on 12 May 2020 recorded that the vehicle was serviced regularly and there were no issues with the vehicle. The vehicle had been serviced approximately five weeks prior to the accident on 15 March 2020 whereby Ultratune had performed a rego inspection, replaced front brake pads, inspected front rotors and rear shoes and topped up fluid levels. The previous inspection was 20 January 2020. Front brake pads had been replaced on 16 October 2019 as well.
Such information supported the proposition that the vehicle was in good mechanical order and the reason for brake fluid loss was the collision itself.
Legislation
In making my decision and conducting my review I have considered the following legislation and guidelines:
· The Act
· Motor Accident Injuries Regulation 2017
· Motor Accident Guidelines 2017
Reasons
I have considered the documents provided in the application and the reply and the further information provided by the parties and final submissions relating to the mechanical history of the vehicle received on 10 June 2021.
The Claimant was involved in a single vehicle collision on 23 April 2020 as recorded by the Police Report bearing event no E75396368. The accident occurred in daylight, the weather was fine, the road surface sealed and the condition of the road was dry.
There was a witness to the accident EC a medical practitioner. Her evidence was that the Claimant reported to her immediately after the collision that there was brake failure. Her evidence in relation to whether there were other vehicles that cut across the Claimant did not support the Claimant’s version of events. Her evidence was:-
“As I was just starting to move the Claimant who was beside me then moved forward of me as he was travelling faster than me. He didn’t stop and continued at the speed he was driving. He wasn’t driving excessively and I think he was he was going about 50 or 60 k per hour.
25. “from when I first saw him to when he hit the tree it was at the most two seconds. He travelled about ten meters from when I first saw him.
…
27. The Claimant appeared to drive normally in lane one and then all of a sudden he swerved off the road and the front of his vehicle ended up on the kerb and he hit the tree”.
Whilst the Claimant contended he took evasive action to avoid another vehicle which crossed his path. This vehicle did not come to the attention of EC. It is possible that EC’s attention was after the lane change had occurred and when the Claimant became level to her only.
The Claimant was returning home from work having completed a night shift. He was tired and considered at one point that he may have momentarily lost concentration. I accept this may well have occurred and to the Claimant’s credit he has honestly provided his version of events.
The accident was not a blameless accident. There was some culpability on the part of the Claimant. His momentary inattention and his sudden swerving to avoid a perceived threat of collision that caused the vehicle to lose control mount the kerb and hit the tree.
The Claimant was travelling within the speed limit but may have been proceeding too fast for the conditions he found himself in, noting the heavily laden utility and the congestion of traffic.
I find that there may have been brake failure as this was mentioned in the Police record at first instance. The Question “Why didn’t you brake to avoid the cars in front? The Claimant responded, “I tried brake, but my car was taking a bit of time due to the heavy load, but it didn’t work for some reason.”
I accept the Claimant’s version of events that there was some brake failure even though the service log produced indicated the front brake pads had been replaced five weeks earlier. It is possible even though the brakes had been replaced that a failure could occur with loss of brake fluid.
There is no evidence from any expert to pinpoint whether the loss of brake fluid occurred before or after the accident. As this uncertainty exists, the Claimant’s recollection of brake failure is critical to a factual conclusion, that there was some issue with the braking mechanism immediately prior to the vehicle mounting the kerb and colliding with the tree, as it was reported by the Claimant at the time of the accident.
I consider that the cause of the accident was in part the momentary inattention of the Claimant and also a sudden mechanical issue with the vehicle’s braking system. The Claimant was not mostly or wholly at fault. In the circumstances I find the contributory negligence on the part of the Claimant’s momentary inattention amounted to relative culpability apportioned to be less than 61%.
The Insurer’s determination that the Claimant was wholly at fault is incorrect. The Claimant was not wholly or mostly at fault.
Conclusion
My determination of the Miscellaneous Claim is as follows:
For the purposes of section 3.28 and 3.11 the motor accident was not caused wholly or mostly by the fault of the injured person.
40. Effective Date: This determination takes effect on 11 June 2021.
41. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1826 inclusive of GST.
Shana Radnan
Member (Motor Accidents Division)
Personal Injury Commission
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