Al Helou v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Al Helou v AAI Limited t/as GIO [2022] NSWPIC 579
Claimant:	Haider Al Helou
insurer:	AAI Limited t/as GIO
Member:	Brett Williams
DATE OF DECISION:	20 October 2022
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims assessment; claimant involved in a single vehicle motor accident; claim made for statutory benefits; insurer denied claim after 26 weeks because it determined that, for the purposes of sections 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 (2017 Act) the accident was caused wholly by the fault of the clamant; accident occurred in heavy rain; claimant lost control of his vehicle as or shortly after he entered the roundabout; Held – the speed at which the claimant’s vehicle was travelling as it entered the roundabout was too fast in the circumstances; the accident was caused by the fault of the claimant and no other person; for the purposes of sections 3.11 and 3.28 of the 2017 Act; the accident was caused wholly by the fault of the claimant.
determinations made:	1. For the purposes s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017, the motor accident on 2 October 2021 was caused wholly by the fault of the claimant.

Reasons for Decision

BACKGROUND

Mr Haider Al Helou (the claimant) was involved in a single vehicle motor accident on 2 October 2021 (the accident). The claimant subsequently made a claim for statutory benefits on AAI Limited t/as GIO (the insurer). While the insurer accepted liability for the claim for the first 26 weeks after the accident, on 24 January 2022 it denied the claim after that time on the basis that the accident was, for the purposes of s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 (MAI Act), caused wholly by the fault of the claimant. The insurer’s decision in this regard was affirmed by an internal reviewer on 30 March 2022.
The claimant disputes the insurer’s determination that the accident was caused wholly by his fault (the dispute). These proceedings were commenced by the claimant on 26 April 2022. The dispute is a miscellaneous claims assessment matter: Schedule 2, cl 3(n) MAI Act.
A preliminary conference was held on 3 June 2022. Leave was granted for a direction for production to be issued to NSW Police and directions were made for the parties to serve and lodge additional evidence and submissions. The parties agreed that the dispute should be determined on the papers.
Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2, I have concluded that the dispute can be determined on the papers. I am satisfied that sufficient information is available in connection with the dispute to allow me to determine it without holding a formal hearing.

EVIDENCE

All the evidence relied on by the parties is contained in a joint bundle. The bundle includes a NSW Police report dated 7 December 2021. The report contains the following summary of the accident:
“DR1 [the claimant] was travelling in a southerly direction on Mandairn [sic] St in Fairfield east. Coming onto Lisbon Street in Fairfield the DR1 had lost control due to wet weather and has collided with a power pole. DR1 failed to slow down in time and the front portion of VEH1 collided with the power pole on the corner of Lisbon Street.”
The police report records that the road where the accident occurred was straight and level, that it was raining, and the surface condition of the road was wet.
The discharge referral from Liverpool Hospital dated 7 October 2021 includes the following summary:
“ED Admission
50M, tf Bankstown
40-50km/hr ute v pole after going round a rounabout [sic]
air bags deployed
occurred around 1930
minor headstrike …”
The clinical notes contained in a CT scan report from the hospital dated 2 October 2021 states: “Trauma hit pole at 60km/hour…”.
The claimant’s application for personal injury benefits dated 12 October 2021 (claim form) contains the following description of the accident:
“On 2 October 2021, at approximately 7:30pm, I was the driver wearing my seat belt in my motor vehicle bearing registration number ‘EJU45C’ travelling on Woodville Road Yennora towards Fairfield Street. It was heavily raining on this day. As a result, I slowed down to a safe speed and switched on the air conditioning to obtain a clear vision whilst driving. As a result of the severe rain on the day, I approached a roundabout in which my motor vehicle slid and suddenly hit an electricity pole.”
A certificate of capacity from Dr Khan dated 24 November 2021 contains the following account of the accident:
“Patient reports that he was driving along Mandarin Street in Fairfield towards Yennora on 02.10.21. Patient reports that it was raining heavily and his windscreen window was foggy. Patient reports that he was approaching a roundabout and as he was adjusting his windscreen wipers, his vehicle slid on the wet road, causing him to lose control of his vehicle and collide with an electricity pole on the side of the road. Patient reports that bystanders assisted with extricating him from the vehicle and Police and Ambulance attended the scene…”
There is a transcript of interview between an investigator instructed by the insurer and Constable El Assad. Constable El Assad attended the accident scene. He confirmed that it had been raining. The Constable confirmed that the accident occurred at Mandarin Street, Fairfield East, not Woodville Road, Yennora, as recorded in the claim form. The Constable expressed the opinion that as the claimant was crossing the roundabout ‘…he must have lost control and…smashed into the pole’. He described the location of the accident as ‘industrial’ as opposed to ‘residential’. Constable El Assad stated that the front bumper of the claimant’s vehicle collided with the telegraph pole. The airbags deployed. The claimant was still in the vehicle when the Constable attended the accident scene, at approximately 7:30pm. There were no witnesses to the accident identified. He described the weather as ‘really wet’. Constable El Assad stated that he spoke to the claimant at the accident scene in Arabic. The claimant was issued a ticket for negligent driving. The Constable confirmed that the ticket was not contested in Court, and that the fine was paid.
The transcript of interview with Constable El Assad contains the following exchange:
“Q123      And, I suppose he just lost control. Did – was the tyres of his car roadworthy?
A123        Yeah, everything else was fine. It was just ---
Q124       The car was okay?
A124        I’m guessing he’s – he might ---
Q125       Yeah.
A125        --- have been just going a little over the speed limit.
Q126       Over the speed – speed a factor.
A126        And, in the – and the wet weather trying to go around the roundabout.
Q127       So, speed may have been a factor.
A127        Yeah. I mean I – I can’t really determine it.
…”

Constable El Assad stated that he spoke to the claimant to obtain his version of events at the claimant’s home on 10 October 2021, following his release from hospital. The Constable read onto the transcript of interview the following version of the accident provided by the claimant at that time:
“On the 2^nd of October, I was in Mandarin Street cross of Lisbon Street in Fairfield East. I was travelling around 40 to 50 kilometres at the time. At the time, it was heavy rain. As I was coming towards the intersection, I could barely see – I could barely see what was happening. So, I tried to wipe my windows. The rain was really heavy as I was coming towards the roundabout. All I remember was losing control due to the wet weather and smashing the electricity pole…”
Constable El Assad confirmed that alcohol or drugs were not a factor in the accident.
In a letter dated 1 April 2022, the claimant, through his solicitors, provided a response to a request for particulars from the insurer’s investigator. The response records, relevantly, that:
(a)    the accident occurred at 7:30pm on 2 October 2021;
(b)    the claimant was driving on Woodville Road in Yennora towards Fairfield Street;
(c)    the claimant was travelling from a friend’s home to the claimant’s residential property;
(d)    the traffic was light and it was raining heavily;
(e)    the tyres on the claimant’s vehicle were in good condition;
(f)    the claimant is familiar with the location of the accident;
(g)    the rear brakes of the vehicle were working prior to the accident;
(h)    the heating fan of the vehicle demister was working at the time of the accident;
(i)    immediately before the accident the claimant was ‘driving under caution as a result of the heavy rain and strong winds’;
(j)    he braked and swerved in an attempt to slow down further to adjust to the weather conditions, and
(k)    he was travelling at 45km/hr prior to the accident.
The response includes the following account of the accident:
“On 2 October 2021, at approximately 7:30am, the Claimant was a driver wearing his seat belt in his motor vehicle bearing registration number ‘EJU 45C’ travelling on Woodville Road in Yennora towards Fairfield Street. It was heavily raining on this day. As a result of the wet raining conditions, the Claimant attempted to further slowdown to adjust to the weather conditions. The Claimant switched on the air conditioning in order to obtain a clear vision whilst driving. As a result of the severe weather conditions, the Claimant approached a roundabout in which he lost control and consequently sliding into a pole.”
A NSW Ambulance report generated on 28 June 2022 records that the accident occurred at a roundabout located at Lisbon and Mandarin Streets, Fairfield.
NSW Police have produced documents in response to a direction for production. The documents include a COPS report that records that the accident was reported at 8:11pm on 2 October 2021. The location of the accident is recorded as being a roundabout at Lisbon Street, Fairfield. Constables El Assad and King attended the accident scene. The following narrative is contained in the report:
“At the above time and date DR1 was travelling in a southerly direction in lane 1 of 1 on Mandarin St in Fairfield east. According to the driver states he was travelling about 50kms and when coming towards the intersection of Lisbon St where there is a roundabout. DR1 then had lost control due to wet weather and has collided with a power pole.
The point of impact was identified on Smart Street in lane 1 of 1 approximately 5 metres from the intersection of Lisbon Street.
…”
The COPS report records that Constable El Assad obtained the claimant’s version of the accident on 10 October 2021. The report records that:
“The DR1 states that due to the heavy rain on the night of the incident, the DR1 was struggling to see and the road was slippery. This caused the DR to lose control and crash into the pole.
…”

The documents produced by NSW Police include the handwritten version of the claimant’s account of the accident recorded in Constable El Assad’s note book on 10 October 2021. There are some minor differences contained in the account recorded in the notebook when compared to what is recorded in the transcript of interview with Constable El Assad that is set out earlier in these reasons. The version recorded in the notebook is as follows:
“On the 2/10/21 I was on Mandarin St x Lisbon st in fairfield east. I was traveling around 40 – 50km at the time and it was heavy rain at the time.
As I was coming towards the intersection I could barley [sic] see so I try to wipe my windows. The rain was really heavy and as I was coming towards the round about, all I remember was losing control due to the wet weather and smashing the electricity pole…”
A diagram of the accident contained in the COPS report depicts the claimant traveling in a southerly direction towards the roundabout. The report records that the claimant was travelling south on Lisbon Street. I consider that the reference to Lisbon Street is an error. For reasons given later in this decision, I have found that the claimant was travelling in a southerly direction on Mandarin Street.
The documents produced by NSW Police also contain a penalty notice issued to the claimant with respect to the accident in relation to negligent driving. The notice records that the claimant failed to pull over or slow down in the wet weather.
The claimant has provided a statement dated 23 September 2022. The statement contains the following account of the accident:
“2.     On 2 October 2021, at approximately 7:30pm, I was a driver wearing a seat belt in my motor vehicle (registration number EJU 45C). I was travelling on Mandarin Street in Fairfield East towards my home at Ashcroft. It was heavily raining, cloudy, windy and overcast on this day. At the time, it was dark and it felt like a heavy storm was taking place. I had my headlights and my windscreen wipers on.
3.     In order to take care and to adjust to the wet and dangerous weather conditions, I began to slow down my vehicle, travelling between about 40km to 50km (I checked the speedometer of my vehicle to determine my speed). My front windshield suddenly began fogging up due to the heavy rain occurring outside and I could no longer see the road ahead of me.
4.     I switched on the air conditioning in order to remove the fog, clear the windshield and to obtain a clear vision whilst driving as I could no longer see through the windshield.
5.     I could not see the road ahead of me due to the heavy rain and fog obstructing my vision and it was at this point which I collided into a pole as I approached a roundabout on the corner of Mandarin Street and Lisbon Street, Fairfield East NSW 2165 ('Accident').
6.     The Accident happened very quickly and I had no opportunity to pull over to the side of the road. I had not consumed any drugs, alcohol or medication prior to the Accident. Upon impact my airbags deployed, my nose began to bleed and I immediately felt extreme pain to my chest. Bystanders helped me get out of my vehicle. I was in excruciating pain and everything seemed to now be happening in slow motion. I was traumatised and in shock as I felt like I almost died.
…”
The claimant states that he was taken by ambulance to Bankstown Hospital and later transferred to Liverpool Hospital. He was discharged from Liverpool Hospital on
7 October 2021. He was re-admitted on 13 October 2021 and discharged on
15 October 2021.
The claimant states that he grew up in Iraq and is not well educated. He came to Australia in about 2002 on a humanitarian visa. He did not know English when he arrived in Australia. He began studying English at Navitas and TAFE after he arrived. He states that he had difficulty learning English and does not know English well.
The claimant states that he was fined for negligent driving after the accident. He cannot recollect whether he paid the fine. He states that he did not dispute the fine as he did not know it could be challenged; he is not very familiar with the Australian legal system. He states that in Iraq, matters were dealt with very differently, and that if he had known he could have challenged the fine, he would have disputed it as he does not agree that he was negligently driving his car. He states that if he paid the fine, it was not because he thought the accident was his fault; he does not like having outstanding bills to pay.

The claimant states that reference to the accident occurring on Woodville Road, Yennora, is not correct, and is due to a miscommunication and misunderstanding between him and his solicitors. He states that the accident took place on the corner of Mandarin Street and Lisbon Street, Fairfield East.
The claimant disagrees that speed may have been a factor in causing the accident. He states that the accident occurred solely because it was raining heavily and his windshield began fogging, which obstructed his vision. He states that he could not see the road due to the fog and heavy rain. He states that he was driving carefully and very slowly. The claimant states:
“21. There was no way I could know the rain was going to increase and pour down so heavily at the time of the Accident and there was no way I could know that I would not be able to see the road through the windshield as a result of the fog. Everything happened so quickly and I truly believe the Accident was not my fault as I did not have a chance to pull over to the side of the road. I had absolutely no way of avoiding the Accident as everything happened so fast. There is nothing further that I could have done to prevent the Accident.
…”
The claimant states that he was ‘simply unlucky’ on the day of the accident, and that he does not believe the accident was caused due to his fault.

CLAIMANT’S SUBMISSIONS

The claimant submits that the accident is a no-fault accident, as defined by s 5.1 of the MAI Act. However, the claimant concedes that Part 5 of the MAI Act has no bearing on a claim for statutory benefits as it applies to a claim for damages and has no application in this dispute. I agree that Part 5 has no bearing on a claim for statutory benefits.
The claimant submits that the real question is whether or not he was wholly or mostly at fault pursuant to ss 3.11(1)(a) and 3.28(1)(a) of the MAI Act. It is argued that, if it is accepted that he could not see the road just prior to the collision (due to the unforeseen circumstances of heavy rain and fog) and he had no real opportunity to drive his vehicle to the side of the road, then he should succeed on this application and a finding should be made that he was not wholly or mostly at fault in causing the accident.
The claimant submits that his limited English and education ought be taken into account when considering the documentary evidence.
The claimant submits that there is an adequate basis for a finding that the heavy rain and sudden fog made him unable to see through the windshield. He argues that he was driving in accordance with the prevailing conditions by having his head lights and windscreen wipers on, driving slowly between 40km and 50km/h, and by turning on his air conditioner in order to remove the fog and to obtain a clear vision of the road. It is argued that his evidence that the accident happened very quickly and that he had no opportunity to drive his vehicle to the side of the road, is relevant to whether he could have taken any further action. The claimant submits that he could not.
The claimant argues that if he did pay the fine for negligent driving (his evidence being that he can’t recall whether he paid the fine), it was not because he thought the accident was his fault. It is submitted that no inference should be drawn that he was wholly or mostly at fault because of his fine for negligent driving. While I find that it is more probable than not that the claimant paid the fine, I have not drawn any inference from the payment of the fine.
The claimant submits that no weight should be placed on Constable El Assad’s opinion evidence with respect to the cause of the accident, including with respect to speed being a factor. In this regard, the Constable stated that he was ‘guessing’ that the claimant ‘might’ have been ‘just going a little over the speed limit’. He also stated that he couldn’t really determine whether speed was a factor in the accident. To the extent that Constable El Assad has given opinion evidence in relation to speed, I do not rely on that evidence with respect to my findings about speed or the cause of the accident.
The claimant submits that his contemporaneous evidence that he was travelling around 40km to 50km/h at the time of the accident, that his vision was obstructed as he ‘could barely see what was happening’ due to the heavy rain, and that he was trying to clear/wipe his windows in order to see the road ahead of him, should be accepted.
The claimant submits that the accident was not his fault as the rain was heavy and he could barely see what was happening. The submissions point to the claimant's evidence that everything happened so fast that he was unable to drive and stop on the side of the road.

In the claimant’s submission, if fault is found, his contributory negligence is less than 61%. This in turn would mean that the accident could not be said to have been caused wholly or mostly by his fault. It is submitted that the insurer has not discharged its onus and the evidence does not support a finding that the accident was caused wholly by his fault.

INSURER’S SUBMISSIONS

The insurer submits that the Commission would find that the claimant is mostly at fault for the accident and his injuries, and thereby not entitled to statutory benefits beyond 26 weeks, pursuant to s 3.11 and s 3.28 of the MAI Act.
The insurer argues that the cause of the accident was the claimant’s failure to drive to the prevailing conditions. It is submitted that a reasonable and prudent driver in the position of the claimant would have avoided the accident, as a reasonable and prudent driver would have taken all necessary precautions to drive to the prevailing conditions – being negotiation of a roundabout in wet weather, where vision through the windscreen was obscured – and would have been on notice that the roadway could be slippery and hazardous. The insurer submits that the claimant’s evidence as to his speed at the time of the accident, and that he slowed down, should not be accepted.
The insurer submits that, even if it is accepted that the claimant was travelling at 40-50km/h, given the weather conditions which were obscuring the claimant’s front windshield, a reasonable and prudent driver in the position of the claimant would have slowed their vehicle down well below 40-50km/h, and/or stopped the vehicle completely on the side of the road until his vision through the windscreen was no longer obscured. It is argued that a finding should be made that the speed at which the claimant was travelling was clearly not a safe speed, in circumstances where the claimant has conceded he lost control of his vehicle before it struck the telegraph pole.
The insurer argues that the history given by the claimant to his general practitioner that he lost control of his vehicle ‘as he was adjusting his windscreen wipers’ gives rise to a reasonable inference that he was distracted when he lost control of his vehicle.
The insurer submits that the claimant’s contributory negligence amounts to well over 61%, and he was mostly at fault for the motor accident.

DETERMINATION

Findings

The NSW Police and Ambulance records, together with the claimant’s statement of
23 September 2022, satisfy me that the accident occurred at a roundabout located at the intersection of Mandarin and Lisbon Streets, Fairfield East, at approximately 7:30pm on 2 October 2021.
I find that reference in the claim form and elsewhere to the accident occurring at Woodville Road, Yennora, is incorrect. The claimant has confirmed and explained this error in his statement at [15] – [16]. I accept his explanation for the error.
In terms of the claimant’s direction of travel, the investigation report relied on by the insurer records that the claimant was travelling in a northerly direction on Mandarin Street, towards Fairfield Road. I have assumed that reference to ‘Fairfield Road’ is intended to be a reference to Fairfield Street, Fairfield East.
However, the NSW Police reports record that the claimant was travelling in a southerly direction. Further, the COPS report includes a diagram that depicts the claimant’s vehicle travelling in a southerly direction. I find that the reported direction of the claimant’s travel in the Police reports is accurate. I also accept the claimant’s evidence that he was travelling on Mandarin Street towards his home, which is located in a position generally southwest from the accident scene. Fairfield Street is to the north of the accident scene and not in the direction of travel I would expect the claimant to be traveling if he was heading home.
I find that, immediately prior to entering the roundabout at the intersection of Mandarin and Lisbon Streets, the claimant was travelling in a southerly direction on Mandarin Street, towards the roundabout.
I find that, on entering the roundabout, the claimant intended to continue driving in a southerly direction along Mandarin Street.
I find that at the time of the accident it was raining heavily and that a heavy storm was taking place. I accept the claimant’s evidence in this regard. It accords with the records from the NSW Police, and the evidence of Constable El Assad, who attended the accident scene shortly after the accident occurred. I also find that the road was wet. I find that the description of the road surface recorded in the NSW Police reports is accurate in this regard.
I accept that the speed limit recorded in the NSW Police report and COPS report is accurate. I find that the speed limit for Mandarin Street at the location of the accident was 50km/h.
I find that as it proceeded south along Mandarin Street towards the roundabout the claimant’s vehicle was travelling at a speed of at least 50km/h. I make this finding on the basis of the claimant’s evidence that he ‘began to slow down [his] vehicle, travelling between about 40km to 50km’.[1] I infer from this that he was travelling at a speed of at least 50km/h when he began to reduce the speed of the vehicle.
[1] Claimant’s statement dated 23 September 2022 at [3].
The claimant’s account of the accident , as recorded by Constable El Assad in his notebook on 10 October 2021, was that he was ‘coming towards the intersection’. Further, the claimant’s response to the particulars sought by the insurer’s investigator records that he was familiar with the location of the accident.[2] I find that as he proceeded along Mandarin Street, the claimant was aware that he was approaching the roundabout at the intersection with Lisbon Street.
[2] See response to question 12 of the request for particulars dated 10 January 2022.
I find that, as he approached the roundabout, the claimant reduced the speed of his vehicle. I accept his evidence in this regard.
I find that as it entered the roundabout, it is more probable than not that the claimant’s vehicle was travelling at approximately 45km/h. In making this finding, I rely on the history recorded in the Liverpool Hospital Emergency Department admission summary, the account provided by the claimant to Constable El Assad on 10 October 2021, and the claimant’s statement, each of which record that he was travelling at a speed of 40km – 50km/h, together with the claimant’s response to the request for particulars from the insurer’s investigator, which states that he was travelling at 45km/h prior to the accident.[3]
[3] See response to question 25 of the request for particulars dated 10 January 2022.
I am not persuaded that the notation in the CT scan report, that the claimant’s vehicle hit a pole at 60km/h, should be accepted. The source of the history is not clear and it is at odds with the entry in the Emergency Department notes and the other evidence in relation to speed.
I find that the windscreen wipers on the vehicle had been activated and were operating as the claimant was travelling down Mandarin Street, and before he entered the roundabout. I accept the evidence given by the claimant in his statement in this regard.
I find that as he approached the roundabout, the claimant’s vision of the road ahead was obstructed because the windscreen had fogged up.
I find that at or about the time the claimant’s vehicle entered the roundabout he switched on the vehicle’s air conditioning in an attempt to clear his windscreen. I also consider it probable that he attempted to wipe the windscreen, as recorded by Constable El Assad on 10 October 2021.
I find that as, or shortly after, he entered the roundabout the claimant lost control of the vehicle.
I find that as a result of losing control of his vehicle, the vehicle collided with a wooden telegraph pole located on the corner of Mandarin and Lisbon Streets.
There is no evidence that the condition of the tyres on the claimant’s vehicle were a relevant factor in the cause of the accident; to the contrary, the particulars the claimant provided on 1 April 2022 record that the tyres on his vehicle were in good condition. Additionally, Constable El Assad stated, in the record of interview with the insurer’s investigator, that the tyres of the claimant’s car were roadworthy.[4] Likewise, there is no evidence that there was a problem with the vehicle’s brakes, or that there were other mechanical issues that contributed to the accident.
[4] See Q123 and A123 in the record of interview.

FAULT

The claimant is not entitled to weekly payments of statutory benefits or benefits for treatment and care more than 26 weeks after the accident if the accident was caused wholly or mostly by his fault: s 3.11 and s 3.28 of the MAI Act. The no-fault provisions found in Part 5 of the MAI Act do not apply to a claim for statutory benefits.
The MAI Act defines fault as negligence or any other tort. Divisions 1–4 and 8 of Part 1A (Negligence) of the Civil Liability Act 2002 (CL Act) apply to motor accidents.
Section 5 of the CL Act defines negligence as follows:
“negligence means failure to exercise reasonable care and skill.”

Section 5B of the CL Act is in the following terms:
“5B   General principles
(1)     A person is not negligent in failing to take precautions against a risk of harm unless—
(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)  the risk was not insignificant, and
(c)  in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)     In determining whether a reasonable person would have taken precautions against a 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.”
Section 5D of the CL Act contains general principles applicable with respect to causation. Section 5D(1)(a) states relevantly:
‘5D   General principles
(1)      A determination that negligence caused particular harm comprises the following elements—
(a)       that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b)       that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) …
(3) …
(4) …’
The duty of the driver of a motor vehicle is to take reasonable care having regard to all the circumstances of the case: Vairy v Wyong Shire Council [2005] HCA 62 (McHugh J) at [26]. The reasonable care that a driver must exercise when driving a vehicle on the road requires 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: Manley v Alexander [2005] HCA 79 (Gummow, Kirby and Hayne JJ) at [12].
I have found that as it proceeded south along Mandarin Street towards the roundabout the claimant’s vehicle was travelling at a speed of at least 50km/h, and that as it entered the roundabout, the claimant’s vehicle was travelling at approximately 45km/h. While I have found that the claimant attempted to reduce the speed of the vehicle as he approached the roundabout, I find that he should have reduced the speed of the vehicle much sooner, as he was travelling on Mandarin Street, and to a lower speed. I consider that, given the prevailing conditions, namely the heavy rain and wet road, travelling along Mandarin Street at 50km/h was not consistent with the claimant’s duty to exercise reasonable care and skill.
Likewise, entering the roundabout at approximately 45km/h, in circumstances where it was raining heavily, the road surface was wet and his vision obscured due to the windscreen fogging up, was not consistent with the claimant’s duty to exercise reasonable care.
Given the prevailing conditions, I find that travelling at a speed of 45km/h as he entered the roundabout, represented a failure by the claimant to exercise reasonable care and skill.
The risk associated with not reducing the speed of his vehicle further than he did as he approached and entered the roundabout, given the prevailing conditions, was foreseeable and not insignificant. It was a risk of which the claimant knew or ought to have known. There was a high probability that harm would occur if care was not taken. The potential harm was serious and the burden of taking precautions, namely further reducing the speed of the vehicle as he approached and entered the roundabout, was minimal. I find that the claimant’s failure to reduce the speed of his vehicle was a necessary condition of the occurrence of the accident.

In short, I find that the speed at which the claimant’s vehicle was travelling as it entered the roundabout was too fast in the circumstances, that this resulted in him losing control of the vehicle and the vehicle colliding with a telegraph pole.
For the purposes of s 3.11 and s 3.28 of the MAI Act, I find that the accident was caused by the fault of the claimant.
I find that the accident was not caused by the fault of any other person. The parties do not submit to the contrary.
Sections 3.11 and 3.28 are concerned with causation of a motor accident by reference to fault, not other, non-fault based causes of the accident, such as the weather.
Neither the claimant nor the insurer have explained how, in circumstances where an accident is found to have been caused by the fault of the claimant, and no one else, the question of whether, for the purposes of s 3.11 and s 3.28, the accident was caused mostly by the fault of the claimant arises.
In cases such as this, where the claimant is the only person who’s fault is found to have caused a motor accident, it follows that the accident was caused wholly by the fault of the claimant.
I find that, for the purposes of s 3.11 and s 3.28 of the MAI Act, the accident was caused wholly by the fault of the claimant.

Costs

The claimant makes a claim for reasonable and necessary costs in connection with the dispute under the Motor Accident Injuries Regulation 2017.
The insurer submits that the application was baseless, unmeritorious and had no reasonable prospects, and therefore none of the legal costs and disbursements incurred in connection with the dispute were reasonable or necessary. I do not agree. I do not consider it unreasonable for the claimant to have commenced these proceedings. Further, I do not agree that the application was baseless, unmeritorious or had no reasonable prospects of success. I encourage parties to be more circumspect before making submissions of this nature.
The insurer’s submissions record that it ‘reserves the right’ to make further submissions as to costs once the substantive fault dispute has been determined.
Having considered the issues that arise in the proceedings, and the work undertaken by the parties, I propose to order the insurer to pay the claimant’s costs of the proceedings in the sum of $1,800 plus GST. If the insurer wishes to make further submissions in relation to costs, it is to do so on or before 26 October 2022. Any submissions in reply are to be lodged by the claimant on or before 4 November 2022.

[2022] NSWPIC 579

20 October 2022