ACF v Insurance Australia Limited t/as NRMA
[2021] NSWPIC 290
•13 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | ACF v Insurance Australia Limited t/as NRMA [2021] NSWPIC 290 |
| APPLICANT: | ACF |
| RESPONDENT: | Insurance Australia Limited t/as NRMA |
| MEMBER: | Brett Williams |
| DATE OF DECISION: | 13 August 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Miscellaneous claims assessment; whether accident caused wholly by the fault of the Claimant; onus of proof; Vines v Djordjevitch considered; Held- motor accident was not caused wholly by the fault of the Claimant; Claimant’s costs assessed in accordance with the Motor Accident Injuries Act 2017 and Motor Injuries Regulation 2017. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.11 the motor accident was not caused wholly by the fault of the Claimant. 2. For the purposes of section 3.28 the motor accident was not caused wholly by the fault of the Claimant. 3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Act 2017 and Motor Accident Injuries Regulation 2017, is $1,660 plus GST. |
Reasons for Decision
Background
ACF (the Claimant) was involved in a motor accident at the intersection of Cowpasture and Bancroft Roads, Abbotsbury, on 1 July 2020 (the accident).
On 21 July 2020 the Claimant submitted an application for personal injury benefits to the Insurer of the other driver involved in the accident (the Insurer). On 5 August 2020 the Insurer accepted liability to pay the Claimant statutory benefits for the first 26 weeks after the accident. On 16 October 2020 the Insurer denied liability to pay benefits after 26 weeks on the basis that the accident was caused wholly by the fault of the Claimant. The Insurer’s notice denying liability made reference to benefits payable under s 3.28.
On 10 November 2020 the Claimant sought an internal review of the Insurer’s liability decision. While the Claimant made no reference to relevant provisions of the Motor Accident Injuries Act 2017 (the MAI Act), it is clear that he disputed the Insurer’s determination that the accident was caused wholly by his fault.
On 1 December 2020 the Insurer issued its internal review decision (the IR decision). The IR decision made reference to both s 3.11 and s 3.38. On the basis that the Claimant failed to keep a proper lookout and made a right hand turn into the path of an oncoming vehicle, the internal reviewer found that the Claimant was wholly at fault for the accident and his injuries. The Insurer’s decision of 16 October 2020 was affirmed.
The Claimant’s submissions lodged in these proceedings, dated 11 December 2020, make reference to s 3.28. No reference is made to s 3.11. His further submissions of 20 July 2021 do not make refence to either ss 3.11 or 3.28. The Insurer’s submissions dated 2 February 2021 and 3 August 2021 make reference to both sections. I will determine the question of whether the accident was caused wholly by the fault of the Claimant for the purposes of both s 3.11 and s 3.28. While the Insurer’s denial of liability on 16 October 2020 only made reference to s 3.28, the IR decision addressed both provisions.
Transitional Matters
The Personal Injury Commission (the PIC) was established on 1 March 2021. These proceedings were commenced on 17 December 2020, before the PIC was established. In accordance with Sch 1 Pt 2 cl 14A and cl 14B of the Personal Injury Commission Act 2020 (the PIC Act), the proceedings constitute pending proceedings and pre-establishment proceedings that I am empowered to determine.
On the Papers
At the teleconference held on 8 June 2021 the parties confirmed that the credit of neither the Claimant nor the insured driver, was in issue. The parties submitted that the dispute should be determined on the papers. Having considered both s 52 of the PIC Act and Procedural Direction PIC2 I concluded that the matter could be determined on the papers. I am satisfied that sufficient information is available in connection with the proceedings to allow me to determine the dispute without holding a formal hearing.
Relevant statutory provisions
Sections 3.11 and 3.28 are the statutory provisions at the centre of this dispute. As can be seen, the provisions are, for relevant purposes, identical in terms of the matters relating to fault that I have to determine; namely whether the accident was caused wholly by the fault of the Claimant. The provisions are in the following terms:
“3.11 Cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks
(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) 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 (as referred to in section 3.38) was greater than 61%.
Note—
Section 3.38 provides for a reduction of statutory benefits after 26 weeks for contributory negligence of the person not mostly at fault.
Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries3.28
(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) 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 (as referred to in section 3.38) was greater than 61%.
Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances”
Scene of the accident and prevailing conditions
The accident occurred at the intersection of Cowpasture and Bancroft Roads, Abbotsbury, on 1 July 2020 at approximately 9.30am. The Claimant was driving a white Hyundai van. The insured driver was driving a white Toyota Camry sedan.
The intersection is controlled by traffic lights. Prior to the accident the Claimant had been travelling in a southerly direction and the insured driver in a northerly direction along Cowpasture Road. For vehicles travelling in a southerly direction there were two lanes and a right hand turning lane at the intersection. For vehicles travelling in a northerly direction there were two lanes. The speed limit in both directions was 70km/h. At the time of the accident weather conditions were fine and clear. The road was dry. Visibility was good. There were houses on both sides of the road. Both the Claimant and the insured driver state that the traffic was light.
Evidence
In his application for personal injury benefits dated 21 July 2020 the Claimant provided the following account of the accident:
“I was a driver, wearing a seatbelt, driving motor vehicle bearing registration number ‘DHJ 36T’ which was stationary and facing south at the intersection on Cowpasture Road intersecting with Bancroft Road in Abbotsbury at the traffic lights. When the traffic light turned green with an arrow, I proceeded to turn right when suddenly and without warning, another motor vehicle bearing registration number ‘DQR 22P’ crossed the intersection though [sic] a red light and collided into the onside of the motor vehicle. As a result, my motor vehicle elevated upwards and pushed several meters”
The NSW Police report dated 31 July 2020 records that the accident occurred on 3 July 2020 at 9.30am and was reported on 17 July 2020. I have assumed that the date of the accident recorded in the report, 3 July 2020, is an error. Neither party has raised the date of the accident recorded in the Police report as an issue. The location of the accident is recorded as the intersection of Cowpasture Road and Bancroft Road, Abbotsbury. The report identifies the Claimant and the insured driver as the drivers involved.
The Claimant provided a statement to M & A Investigations dated 18 August 2020. The Claimant stated that he was heading south on Cowpasture Road in the right turn lane intending to turn into Bancroft Road. His right indicator was on. He was the first car at the white line before entering the intersection. He stopped his vehicle as he was faced with a red turn arrow. There was a green light to go straight. When the arrow turned green he started to turn into the intersection. When he was in lane 1 on Cowpasture Road heading north his vehicle was hit by the insured’s vehicle coming from his left on Cowpasture Road heading north. He stated ‘[I] only saw the other car when I was looking straight ahead as I was turning, just before the car hit my car’. He states that he saw something white coming towards him from the left corner of his eye. He says he was traveling at a speed of ‘about 20-30 km/h’ as he was turning. He states that he ‘didn’t have a chance to take evasive action’. When the arrow changed from red to green and before he began to move off he saw a car stopped at the white line in the middle lane of Cowpasture Road heading north. He states that he didn’t hear any noise or breaks from the other vehicle before it hit his car. The Claimant states that the front of the insured driver’s vehicle hit the left passenger-side front door and guard of his vehicle. There was nothing blocking his vision to the front or left and right sides of his vehicle. He was not issued with any infringements and was not charged following the accident. The Claimant indicated on a photograph the position of the vehicles on the roadway when they collided. The marked-up arial photograph provided with the Claimant’s statement is Annexure A to these reasons.
The insured driver provided a statement to M & A Investigations dated 27 August 2020. He confirmed that in the direction he was travelling there were two marked lanes. He stated that there were ‘no vehicles in front or behind there was cars passing me’. He was in the lane closest to the houses, near the footpath. He was travelling at 65km/h and proceeding straight ahead along Cowpasture Road. He states that:
“[43] …I was about 15 - 20 meters away from the intersection of Bancroft Rd when I saw that the traffic lights were green all the time. I drove through the intersection, when I was halfway into the intersection, when suddenly I collided into a white car turning in front of my path. I didn’t see the other car at all. There were no cars stopped at the intersection, it was a green light. There was no other cars in front of me when I got into the intersection. I didn’t see any other car turn right into Bancroft Rd. There was cars that had stopped at the red light on Bancroft Rd.
[44] As a result of the impact the front of my car collided into the passenger side doors of the other car…”
The insured driver indicated on a photograph the position of the vehicles on the roadway when they collided. The marked-up arial photograph is Annexure B to these reasons.
Both the Claimant and the insured driver place their respective vehicles in the same general position in the marked-up photographs. The Claimant’s vehicle is depicted to have turned right from Cowpasture Road across the intersection and into the lane in which the insured driver was proceeding. Both drivers depict the insured driver’s vehicle colliding with the front left passenger side of the Claimant’s vehicle.
In addition to the arial photographs marked up by each of the drivers, the M & A report contains three photographs of the Claimant’s vehicle and four photographs of the insured driver’s vehicle taken by the Claimant at the accident scene. There are also two photographs that the insured driver took of his vehicle at the accident scene. The photographs depict:
(a)damage to the left passenger door and left sliding door of the Claimant’s vehicle, described in photographs 1, 2 & 3 as damage to the nearside of the Claimant’s vehicle; and
(b)damage predominantly to the left front of the insured driver’s vehicle, described in photograph 6 as damage to the front/nearside. The vehicle’s hood has buckled. There is also some damage to the front driver’s side of the vehicle.
There is a traffic phasing report from Transport for NSW attached to a report from M&A Investigations dated 15 March 2021. The report relates to the operation of the traffic control lights at the intersection of Cowpasture and Bancroft Roads (TCS 3264) on 1 July 2020. The traffic phasing report records as follows:
a.The exact sequence and timing of the respective phases in the signal operation is variable and is governed by vehicle and pedestrian demand and traffic density at this and other intersections at that time. Transport for NSW (TfNSW) is therefore unable to determine the exact phase times or sequences that occurred on the date in question. However, signal displays are subject to minimum times;
b.At the intersection there are four (4) phases available that can be introduced according to demand. A vehicular demand can be a presence of a vehicle at a stop line, and a pedestrian demand can be the actuation of a pedestrian push-button. Any phase that has no demand will not be introduced, except for ‘A’ phase, which is always introduced. If no demands exist for any phases, the intersection will remain in ‘A’ phase. ‘D’ Phase has been removed from the sequence and not normally introduced. If simultaneous demands exist for all phases, then the signals would cycle in the sequence ‘A’, ‘B’, ‘C’, and then back to ‘A’ phase;
c.‘A’ phase allows traffic to proceed north and south on Cowpasture Road. Traffic proceeding north on Cowpasture Road is permitted to turn left into Bancroft Road to proceed west. Traffic proceeding south on Cowpasture Road is permitted to turn right into Bancroft Road to proceed west across opposing traffic with driver discretion. The pedestrian crossing across Bancroft Road (A Ped) may be introduced at the start of this phase. If the pedestrian crossing across Bancroft Road is introduced, right turn red arrows facing southbound on Cowpasture Road and the left turn red arrows facing northbound on Cowpasture Road are displayed for 6 seconds;
d.‘B’ phase allows traffic to proceed south on Cowpasture Road and turn right into Bancroft Road to proceed west. Traffic proceeding east on Bancroft Road is permitted to turn left into Cowpasture Road to proceed north;
e.‘C’ phase allows traffic on Bancroft Road to turn left and right into Cowpasture Road to proceed north and south, respectively;
f.The pedestrian crossing across the northern approach of Cowpasture Road (C Ped) may be introduced at the start of this phase. If the pedestrian crossing across the northern approach of Cowpasture Road is introduced when demanded from the eastern side of the intersection, the left turn red arrows facing left turning traffic on Bancroft Road are displayed for 16 seconds. If demanded from the western side of the intersection, the left turn red arrows facing left turning traffic on Bancroft Road are displayed for 8 seconds;
g.‘D’ phase allows traffic to proceed south on Cowpasture Road and turn right into Bancroft Road to proceed west. Traffic proceeding east on Bancroft Road is permitted to turn left into Cowpasture Road to proceed north. This phase has been removed from the sequence and not normally introduced. The pedestrian movements are only introduced if demanded;
h.The time interval between the ends of the green of the terminating phase to the start of the green for the next demanded phase in sequence is the addition of the Yellow and All Red periods of the terminating phase. The absolute minimum duration of a phase determined solely by vehicle movements is the addition of the Minimum Green, Yellow, and All Red times. However, the absolute minimum duration of a phase determined by pedestrian movements would be the pedestrian crossing times. That is, the addition of the minimum green pedestrian signal and flashing red pedestrian signal times;
i.Phase A had the following minimum times: green – 8 seconds, yellow – 4.5 seconds, all red – 2 seconds;
j.Phase B had the following minimum times: green – 8 seconds, yellow – 4.5 seconds, all red 2 seconds, and
k.Phase C had the following minimum times: green – 5 seconds, yellow – 4 seconds, all red – 2 seconds.
In response to a request for clarification sought by M&A Investigations in relation to the phasing report, there is an email from Transport for NSW dated 8 June 2021 in which it is stated that D phase was removed from the sequence and was not in operation on 1 July 2020. It is stated that a green arrow will only be introduced according to demand. Phases that had a green arrow display are:
a.phase B – traffic proceeding south on Cowpasture Road to turn right (displays a green right turn arrow) onto Bancroft Road to proceed west and traffic proceeding east on Bancroft Road (displays a green left arrow) is permitted to turn left into Cowpasture Road to proceed north, and
b.phase C– Traffic proceeding south on Bancroft Road to turn left (displays a green left turn arrow) into Cowpasture Road to proceed north. Traffic proceeding south on Cowpasture Road and turning left (displays a green left turn arrow) into Bancroft Road to proceed west.
The author of the M& A report dated 3 September 2020 records that when he was present at the accident scene he observed that ‘Cowpasture Road in a southerly direction as faced by the claimant has a green light signal for traffic travelling straight ahead and traffic turning right into Bancroft Road which changes to orange, then to a right turn red arrow and red signal for traffic travelling straight ahead.’ I do not intend to rely in these observations when determining this dispute. The information is not in a form that I consider I can rely upon. It is not contained in a signed statement. The precise traffic conditions prevailing when the observations were made are not evident. Critically, Transport for NSW confirmed, in an email dated 8 June 2021, that phase B at the intersection involves a green right turn arrow being displayed to traffic proceeding south on Cowpasture Road turning right onto Bancroft Road to proceed west. This is the path taken by the Claimant.
The Claimant’s submissions
The Claimant relies on written submissions dated 11 December 2020 and 20 July 2021.
He submits that after being stationary at the intersection he turned right from Cowpasture Road into Bancroft Road after the traffic arrow light turned green. He did not see the insured driver’s vehicle until it was too late to take evasive action.
The damage to his vehicle depicted in the photographs taken after the accident indicate that he had made a full right turn before the insured driver’s vehicle collided with his vehicle.
The Claimant had right of way as he had a green right turn arrow in his favour and his vehicle had already gone through the intersection. The Claimant argues that the insured driver did not stop at a red traffic light and proceeded through the intersection when he did not have right of way.
The Claimant argues that he did not need to give way to the insured driver as he had a green right turn traffic arrow in his favour. He relies on Rule 62(2) of the Road Rules 2014. The rule states that a driver who is turning at an intersection with traffic arrows showing a green traffic arrow need not give way to an oncoming vehicle if the driver is turning in the direction indicated by the green traffic arrow.
Given the point of impact at the intersection and the damage to the vehicles it is submitted that the insured driver should have seen the Claimant and taken steps to avoid the collision.
The Claimant argues that the traffic phasing report does not resolve the factual dispute in relation to the light phasing at the time of the accident and is irrelevant to resolving the dispute.
The Claimant argues that the accident was neither wholly or mostly caused by fault on his part and that the accident was caused by the fault of the insured driver.
The Claimant submits that the Insurer carries the onus of proving that the accident was caused wholly by his fault.
The Insurer’s submissions
The Insurer relies on written submissions dated 2 February 2021 and 3 August 2021.
In the February 2021 submissions the Insurer relies on the observations of Mr Eldahr, of M&A Investigations, who attended the accident scene and observed that the traffic lights as faced by the Claimant do not have a green arrow phase; traffic turning right into Bancroft Road proceeding on a solid green light when it was safe to do so. For the reasons stated earlier, I do not consider that I can rely on these observations to resolve the factual dispute in relation to the traffic lights. Further, in its submissions dated August 2021 the Insurer appears to concede, based on the email from Transport for NSW dated 8 June 2021, that it is possible for the Claimant to have had a green right turn arrow if phase B was in operation.
The Insurer argues that it is more likely than not that the Claimant had a solid green light facing him and not a green right turn arrow when he commenced his right hand turn into Bancroft Road. In those circumstances, the insured driver would also have had a solid green light facing him. That being the case, the Claimant should have given way to the insured driver, as required by Rule 62(1) of the Road Rules 2014. That rule states that a driver turning at an intersection with traffic lights must give way to - if the driver is turning right - any oncoming vehicle that is going straight ahead at the intersection.
The Insurer submits that the Claimant failed to keep a safe and proper lookout, failed to give way to the oncoming vehicle driven by the insured driver and made a right hand turn directly into the path of the vehicle driven by the insured driver. In the Insurer’s submission the Claimant is wholly at fault for the accident.
In the August 2021 submissions the Insurer argues that, for the Claimant to satisfy section 3.1(2) of the Act, he must satisfy the requirements of sections 3.11 and 3.28 of the Act. This is because section 3.1(2) provides that “statutory benefits are payable (except as otherwise provided by this Part)”. Satisfying the requirements of Part 3 of the Act is a condition that must be met to give rise to the entitlement in section 3.1(2) of the Act. The entitlement to statutory benefits does not exist beyond 26 weeks in the absence of the requirements of sections 3.11 and 3.28 of the Act being met.
The Insurer argues that ss 3.11 and 3.28 of the MAI Act provide threshold requirements that the Claimant must satisfy in order to be entitled to statutory benefits after 26 weeks from the date of the accident.
It is submitted that, in accordance with Vines v Djordjevitch [1955] HCA 19 (Vines), the burden of proof rests with the Claimant in terms of establishing that the accident was not caused wholly by his fault.
In terms of the traffic phasing report, the Insurer submits that:
a.phase A allows traffic to proceed north and south on Cowpasture Road with the traffic proceeding north being permitted to turn left into Bancroft Road and traffic proceeding south being permitted to turn right with driver discretion, and
b.phase B allows traffic to proceed south on Cowpasture Road and turn right into Bancroft Road. The email dated 08 June 2021 from Transport for NSW confirmed that the phase B displays a green right turn arrow for the traffic proceeding south on Cowpasture Road to turn right into Bancroft Road.
The Insurer submits that it is more likely that the traffic light on Cowpasture Road was solid green when the Claimant commenced the right-hand turn into Bancroft Road. In his statement, the insured driver confirmed that ‘the traffic lights were green all the time’.
The Claimant’s statement that he only saw the insured driver’s vehicle when he was looking straight ahead as he was turning just before the insured driver’s vehicle hit his vehicle supports the view that the Claimant had a solid green traffic light and attempted to turn right into Bancroft Road when he deemed it was safe to do so.
The Insurer repeats its submission that the available evidence indicates that Claimant was wholly at fault for the accident. The Insurer does not submit that the accident was caused mostly by the fault of the Claimant.
Onus
The Claimant argues that the onus rests with the Insurer to prove that the accident was caused wholly by his fault for the purposes of s 3.11 and s 3.28. The Insurer argues to the contrary, relying on Vines in support of its submission that the burden of proof rests with the Claimant.
Vines concerned a provision in the Motor Car Act 1951 (No. 5616) (Vic.). The first question dealt with by the Court1 was whether the burden of proving facts amounting to compliance with the provision in question rested upon a plaintiff.
The critical passage in Vines, for present purposes, is as follows:
“[8]. It is said that the form of the sub-section places the burden of disproof on the defendant. For the requirement of prompt notice after the injured party becomes aware of the impossibility of identifying the car inflicting the injuries is expressed in the form of a proviso. "There is a technical distinction between a proviso and an exception, which is well understood. All the cases say, that if there be an exception in the enacting clause, it must be negatived: but if there be a separate proviso, it need not" - per Abbott J. in Steel v. Smith (1817) 1 B&Ald 94, at p 99 (106 ER 35, at p 37). The distinction has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations. In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words, it may embody the principle which the legislature seeks to apply generally. On the other hand, it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter: see Morgan v.Babcock &Wilcox Ltd. (1929) 43 CLR 163 ; Pye v. Metropolitan Coal Co. Ltd. (1934) 50 CLR 614; (1936) 55CLR 138 ; Darling Island Stevedoring &Lighterage Co. Ltd. v. Jacobsen (1945) 70 CLR 635 ; Barritt v. Baker(1948) VLR 491, at p 495 ; Dowling v. Bowie (1952) 86 CLR 136 . (at p520)”
Part 3 of the MAI Act governs the Claimant’s rights to statutory benefits. In my view, s 3.1 establishes primary grounds from which the Claimant’s right to payment of statutory benefits arise. The provision is in the following terms:
“3.1 Statutory benefits payable in respect of death or injury resulting from motor accident
(1) If the death of or injury to a person results from a motor accident in this State, statutory benefits are payable in respect of the death or injury as provided by this Part.
(2)
(3) Statutory benefits are payable (except as otherwise provided by this Part)—
(a) whether or not the motor accident was caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, or
(b) even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.”
Division 3.3 establishes rights to weekly payments of statutory benefits. Those benefits are payable:
a.during the first entitlement period – to an earner who is injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injury (s 3.6);
b.during the second entitlement period – to an earner who is injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injury (s 3.7), and
c.after the second entitlement period – to a person who is injured as a result of a motor accident and suffers a total or partial loss of earning capacity as a result of the injury (s 3.8).
Neither s 3.6, s 3.7 or s 3.8 make fault a factor in establishing an entitlement to weekly payments.
Likewise, the provisions in Division 3.4 that establish entitlements to statutory benefits for treatment and care, s 3.24 and s 3.26, do not make fault a factor in establishing those entitlements.
I have concluded that s 3.11 and s 3.28 express exclusions which assume the existence of general or primary grounds from which the right to statutory benefits arise but denies the rights in particular cases by reason of additional or special facts; namely circumstances in which the subject motor accident was caused wholly or mostly by the fault of the injured person who has claimed statutory benefits under Part 3 of the Act. Sections 3.11 and 3.28 do not, in my view, impose a condition precedent on the Claimant’s entitlements to statutory benefits.
The Insurer seeks to rely upon the additional or special matters found in s 3.11 and s 3.28, namely cessation of statutory benefits on the basis that the motor accident was caused wholly by the fault of the Claimant. Accordingly, the onus of establishing, on the balance of probabilities, facts said to demonstrate that the motor accident was caused wholly by the fault of the Claimant rests with the Insurer. Likewise, the onus of establishing, on the balance of probabilities, that the accident was caused wholly by the fault of the Claimant rests with the Insurer.
Factual findings
On the basis of the evidence available to me I make the following factual findings:
a.the subject intersection is controlled by traffic lights;
b.prior to the accident the Claimant had been travelling in a southerly direction and the insured driver in a northerly direction along Cowpasture Road;
c.for vehicles traveling in a southerly direction there were two lanes and a right hand turning lane at the intersection of Cowpasture and Bancroft Roads;
d.for vehicles traveling in a northerly direction there were two lanes;
e.the speed limit on Cowpasture Road was 70km/h in both directions;
f.at the time of the accident weather conditions were fine and clear. The road was dry. Visibility was good. There were houses on both sides of the road;
g.the traffic in both directions was light;
h.immediately prior to making a right hand turn from Cowpasture Road into Bancroft Road the Claimant was stationary in the right hand turning lane and was facing a red right turn arrow;
i.immediately prior to the collision the insured driver was traveling in a northerly direction in the curb-side at a speed of 65km/h;
j.The insured driver did not see the Claimant’s vehicle at any time prior to the collision;
k.the Claimant saw the insured driver’s vehicle just before impact;
l.neither driver took evasive action to avoid the accident, and
m.the front left of the insured driver’s vehicle impacted the left passenger door and left sliding door of the Claimant’s vehicle.
The critical factual dispute relates to whether the Claimant commenced his turn into Bancroft Road after the traffic control lights changed to give him a green right turn arrow. If he did, the insured driver must have been faced with a solid red traffic signal. If, on the other hand, the Claimant was faced with a solid green light, the insured driver was also faced with a solid green traffic light.
The critical factual plank in the Insurer’s case that the accident was caused wholly by the fault of the Claimant is that both the Claimant and the insured driver were faced with a solid green traffic light. The Insurer must establish these facts on the balance of probabilities.
On the evidence before me, the Claimant has provided a consistent account that after being stationary at the intersection the traffic lights facing him changed from a red right turn arrow to a green right turn arrow. In his claim form dated 21 July 2020, completed less than three weeks after the accident, he recorded that “…When the traffic light turned green with an arrow, I proceeded to turn right..”. In his statement dated 18 August 2020 he stated that when the arrow turned green he started to turn into the intersection.
Other than confirming the various light phases at the intersection, the light phasing report is of limited assistance in resolving the central factual dispute.
While the insured driver states that he had a solid green light facing him as he entered the intersection, I am not persuaded that his evidence should be preferred over the Claimant’s evidence. I am not persuaded that it is more probable than not that both drivers were faced with solid green traffic lights.
The Insurer has failed to establish the facts central to its argument that the accident was caused wholly by the fault of the Claimant. Accordingly, I am not satisfied, on the balance of probabilities, that the Claimant was wholly at fault for the accident.
As the Insurer does not argue in the alternative that the accident was caused mostly by the fault of the Claimant I have not addressed that issue.
Costs
In his submissions dated 11 December 2020 and 20 July 2021 the Claimant seeks costs assessed in accordance with the Motor Accident Injuries Regulation 2017. Costs are not sought under s 8.10(4)(b) of the MAI Act. The Insurer does not dispute the Claimant’s entitlement to recover from it his reasonable and necessary legal costs in connection with the dispute. I find that the Claimant’s reasonable and necessary costs in connection with the dispute are $1,660 plus GST.
Brett Williams
Member (Motor Accidents Division) Personal Injury Commission
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