ABR v AAMI
[2021] NSWPIC 204
•23 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | ABR v AAMI [2021] NSWPIC 204 |
| APPLICANT: | ABR |
| RESPONDENT: | AAMI |
| MEMBER: | Hugh Macken |
| DATE OF DECISION: | 23 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, 3.28 and 3.36 of the Motor Accident Injuries Act 2017; claimant contends blameless accident; travelling down a hill on a wet road; wheel lost traction; attempted to control, sudden roll; no evidence to support the existence of any unknown hazard; no evidence to support any mechanical failure of defect; claimant driving faster than was safe in the circumstances; single vehicle accident; Held- accident was caused wholly by the fault of the claimant. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.11 the motor accident was caused by the fault of another person. 2. For the purposes of section 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person. 3. Effective Date: 10 June 2021. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
This claim arises out of the contention by the Insurer that the Claimant, ABR, was wholly at fault and caused the accident which occurred on 23 March 2018.
The Claimant contended this was a blameless accident.
The parties agreed the issue of fault ought be determined first. If the matter is then considered to be a blameless accident the second matter of contention between the parties, that whether the Claimant’s explanation for the delay in bringing the claim is full and satisfactory, can be dealt with.
An Assessment Conference in this matter had firstly been set down on 1 October 2020. This Assessment Conference was vacated as the Claimant wished time to put on further material. Thereafter the Insurer needed further time to obtain documents from the New South Wales Police Force in respect to the circumstances of the accident.
The matter proceeded to an audio/visual Assessment Conference on 19 April 2021. Further directions were made that the Claimant could lodge any further submission on 5 May 2021. No additional material has been received from the Claimant and accordingly an assessment of the issue of fault can be made.
This is a relatively straight forward matter. It is agreed the Insurer has the onus in establishing the Claimant was mostly at fault. That is, it is the Insurer’s submission the Claimant was wholly at fault for the motor vehicle accident pursuant to sections 3.11, 3.28 and 6.19 of the Motor Accident Injuries Act 2017 (MAIA).
The circumstances of the accident are relatively straight forward. The accident occurred whilst the vehicle in which the Claimant was driving was travelling down a hill, on a wet road, with a left hand bend. The notes taken by the Police state:
“Travelling (S), 90-100, wheel lost traction attempted to control, sudden roll.”
The Police Report states:
“About 1.10 pm on 23/3/18, VEH1 was being driven south along Putty Road, Mellong, about 70 km North of Windsor, 100km South of Singleton. DRV1 attempted to negotiate a downhill left hand bend, at which time one of the rear wheels started losing traction. The driver attempted to correct the vehicle’s steering, however, has been unable to do so.”
The vehicle then left the road and has rolled onto its left hand side. The Claimant’s statement dated 29 September 2020 states:
“The speed limit at the site of the accident was 100km per hour. Before the accident I was travelling at about 90km per hour at the top of the hill which goes downhill to the slight bend in the road. I don’t believe it was raining at the time of the accident, but it had rained recently as to road was wet.”
He goes on to say:
“.... I slowed down further downhill approaching the bend, but I did not check my speed again before the accident.”
Given the Claimant has indicated he slowed his vehicle as it went down the hill this would, presumably, only have occurred if the brakes were being applied. At the Assessment Conference the Claimant stated, in answer to a question as to whether he applied the brakes stated:
“I didn’t apply the brakes. I had my foot on top of the brake.”
The Claimant, at the Assessment Conference, contradicted the fact he had slowed down going down the hill and he stated his foot was neither on the accelerator going down the hill nor on the brake.
The primary contention on the part of the Claimant in respect to the accident is set out in his statement. He says:
“I don’t believe the accident was my fault. I believe a mixture of the water and oil on the roadway after the rain caused my car to slide in the bend in the road and crash.”
Numerous photographs were tendered of the accident. They showed a downhill gradient with a bend going around to the left hand side. There is one lane of traffic in each direction. The area is heavily timbered.
The Claimant submitted a number of matters which he contends ought give rise to a finding that the accident was not wholly or mostly his fault. The statement:
“Mostly at fault”
is defined in section 3.11(2) of the MAIA to be greater than 61% contributory negligence.
The Claimant contends as the Police did not take any action against him under the Road Traffic Act he could not have been considered at fault. With respect to the Claimant for this submission, it is irrelevant as to whether or not the Police took any action against him. The Claimant stated as he was travelling at 10 km below the posted speed limit this ought give rise to a finding he was not mostly at fault. Again, with respect to the Claimant, this does not make out he was not mostly at fault. It may well be he ought to have been travelling at a considerably slower speed than the 90 km per hour in which he admits to have been travelling. The Claimant contends an oily substance mixed on the roadway with rain water may have caused the accident. Again, with respect to the Claimant there is no evidence to support the existence of any unknown hazard, other than the fact the road was wet from rain, which may have contributed to the accident.
Similarly there was no evidence to support any mechanical failure or defect which may have contributed to the accident.
I accept the Insurer’s contention the accident occurred as a result of the Claimant driving faster than was safe in the circumstances. It is a single vehicle accident. He has lost control and traction of his vehicle in the wet weather whilst travelling down a hill, negotiating a bend, on a wet road. The speed in which the vehicle was moving, taking into account the reduced traction occasioned by the wet road, and noting the change in momentum and direction of the vehicle whilst negotiating a bend, caused the wheels to move laterally across the surface of the car which, in turn, caused the vehicle to leave the road and roll onto its side.
The Claimant was travelling too quickly which is why the accident occurred.
The allegations made by the Insurer fit the circumstances. The Claimant was driving too fast in the circumstances noting the wet weather conditions and the bend in the road. The Claimant could and ought to have slowed his vehicle on approach to the bend and generally driven more slowly noting the wet weather. There was no material to suggest any other factor, other than the Claimant’s driving, caused him to lose control of the vehicle.
I am satisfied the Insurer has made out the onus put on it by the legislation. That is, the accident was mostly the fault of the Claimant.
FINDINGS
I find the accident was caused wholly by the fault of the Claimant.
COSTS AND DISBURSEMENTS
I note the Claimant seeks costs and disbursements in respect to the dispute. I am not satisfied the Claimant has set out an entitlement to costs. I note there was no material which would support the Claimant’s contention that the accident was anything other than the fault of the Claimant. I do not find there are any exceptional circumstances pursuant to section 7.37 of the MAIA which would reasonably oblige the Insurer to pay legal costs given the findings I have made. Accordingly I assess costs at nil.
Legislation
In making my decision I have considered the following legislation and guidelines:
• Motor Accident Injuries Act 2017 (NSW) ("the Act") MAIA;
• Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020, and
• Motor Accident Guidelines/Personal Injury Commission Rules 2021.
Hugh Macken
Member (Motor Accidents Division)
Personal Injury Commission
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