Alonso v Allianz Australia Insurance Limited
[2022] NSWPIC 651
•18 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Alonso v Allianz Australia Insurance Limited [2022] NSWPIC 651 |
| CLAIMANT: | David Alonso |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Bridie Nolan |
| DATE OF DECISION: | 18 November 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; single motor vehicle accident; vehicle aquaplaned when negotiating turn on freeway in wet weather; vehicle collided with guard railing causing injury to claimant driver and passenger; whether the motor accident was caused by the fault of another person; consideration of fault in the context of sections 3.11 and 3.28; tortious liability; whether duty of care owed to passenger can constitute “fault”; whether assessment is required where claimant departed from the standard of care for his own safety; Axiak v Ingram referred to; Held – claimant driver’s speed on negotiating turn not excessive; aquaplaning caused by a build-up of water on the road causing vehicle to no longer be capable of steering and braking; not satisfied that the accident was caused by the claimant’s failure to slow down; the motor accident was not caused by the fault of another person. |
| DETERMINATIONS MADE: | Certificate Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 The findings of the assessment of this dispute are as follows: 1. For the purposes of section 3.11 the motor accident was not caused by the fault of another person 2. Effective Date: This determination takes effect on 20 March 2021. 3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,980 inclusive of GST. |
Reasons for Decision
Issued under s 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to an application for determination of a miscellaneous claims dispute as to whether for the purposes of s 3.11, the motor accident concerned was caused by the fault of another person: Schedule 2(3)(d) of the Motor Accidents Injuries Act 2017 (NSW) (the Act).
The claimant was involved in a single motor vehicle accident on 20 March 2021 at approximately 10:40 pm on the Pacific Highway, when he lost control of his vehicle as he negotiated a bend/curve in the road.
On 13 July 2021, the claimant was provided with a “Liability Notice – Benefits after 26 Weeks” in which he was deemed wholly at fault in relation to the subject motor vehicle accident.
On 3 August 2021 the claimant lodged an internal review application requesting that the insurer review the matter as the claimant contended, he was not at fault, nor did he contribute to any negligent act that caused the accident. The claimant submitted that the accident fell to be considered under a no-fault motor accident primarily due to the severe weather conditions at the time of the accident.
By a Certificate of Determination dated 24 August 2021 the insurer affirmed its original decision finding that the claimant was wholly at fault for the accident.
The claimant submits that on the evening of the subject accident the weather conditions were severe, as there was heavy rain and storms. As a result of the severe weather conditions, the claimant’s motor vehicle slipped on the curvy and hilly road, collided into a rock wall, and consequently rolled onto the side of the freeway.
The claimant had attended that day upon a property near Booral to perform some maintenance on his property there which had suffered storm damage. He left the property at Booral at 8:00pm to return to Sydney. The weather was rainy, to and from the destination. Progressively the weather turned from rain to heavy rains and storm. He said the rain was continual. He was travelling at 90 to 95 kmph prior to impacting the wall. The speed limit in the area is 110 kmph. The traffic was light and very slow.
Approximately 500 metres prior to the impact with the road barrier, the claimant said he was travelling at 90 kmph. He was travelling in the middle lane. The weather at the time of the collision was heavy rain and consistently storming.
He was travelling straight and drove to an uphill section of the M1 Motorway which had a curve. His car drove through a flood of water and lost traction, resulting in his car swerving sideways. He attempted to straighten the car, the car slid and skid around. It subsequently collided with the side rail of the M1 and resulted in the car flipping and rolling over.
He says there was a build-up of water on the road that caused the vehicle to aquaplane on the road and the shape of the road being curvy and hilly contributed to this.
He cannot recall if his headlights were on low or high beam. He said that he had the radio off. His windscreen wipers were on high speed at the time of the accident. He did not have cruise control activated. He was not using his mobile phone at the time of the incident. He was driving with a passenger.
In his statement to police submitted on 13 May 2021 at 10:55am, the claimant said that he was heading south to Sydney from Newcastle on the M1. It was bad weather with heavy rain. He was travelling between 90 to 95 kmph per hour in the middle lane. He hit a puddle of water and slid out and hit the guard rail.
The claimant was issued with a traffic infringement notice on 28 May 2021 for negligent driving not causing death or injury. This notice was subsequently withdrawn.
In a Certificate of Determination, the insurer concluded that the claimant was wholly at fault for the motor accident for failing to drive to the prevailing weather conditions and failing to take reasonable care and/or to avoid a collision.
It found that there was no evidence to suggest that the surface of the bitumen that contributed to the accident occurring in the way that it did. The insurer accepted that the claimant was travelling between 90 to 95 kmph immediately before the collision. It found that the claimant failed to reduce his speed when he was approaching the bend in the road. This is despite accepting the claimant’s statement that at approximately 500 metres prior to the impact with the barrier. The insurer relied upon the failure by the claimant to give evidence that he had adjusted his manner of driving or reduced his speed to less than 90 kmph when taking the bend before the accident location.
It concluded that the claimant ought to have reduced his speed further to respond to the prevailing weather conditions. It found that had the claimant reduced his speed further, he would have been able to avoid aquaplaning, and thereby been able to traverse the bend.
It did not accept that turning off cruise control was a sufficient precaution in itself to avoid a collision from occurring.
It therefore found that the claimant was negligent by failing to take any precautions against a reasonably foreseeable risk of harm, being water on the roadway during heavy rainfall, to avoid injury from occurring.
Documents Considered
I have considered the documents provided in the application and the reply and any further information provided by the parties.
SUBMISSIONS
Insurer’s submissions
The insurer was referred to my decision in ABZ v AAI Limited t/as AAMI [2021] NSWPIC 246, in particular, my reasons at [24] – [56].
The insurer does not appear to dispute my reasons in that decision, however, notes that there was another person by whom the claimant’s actions may be considered, notably, the passenger.
The insurer says that the claimant had a passenger in his vehicle who it has not disputed was injured by the accident. It submits that the extent of the passenger’s injuries is not relevant.
It submits that the claimant was in exclusive control of his vehicle at the time of the accident, and as such, he had a duty to care for his passenger to take reasonable care and all reasonable precautions in the driving of that vehicle having regard to the relevant conditions. Further, it was reasonably foreseeable that by not reducing his speed to traverse the bend, an accident could occur.
It submits that the passenger would have an action of negligence against the claimant as the claimant breached his duty of care to that other person. It does not follow that the passenger is required to make a claim in order for there to be a breach of duty of care.
The insurer therefore submits that the claimant was negligent.
It therefore submits that the subject accident which occasioned injury to a person was caused by the fault of the claimant, due to the claimant’s negligence as required by s 1.4 of the Act.
The insurer submits that ss 3.11 and 3.28 of the Act did not negate any consideration of the claimant’s negligence with reference to other persons involved in the accident, such as his passenger, simply because the claimant cannot have a claim for negligence against himself and has averred a no-fault accident.
The insurer maintains that sub-s (1) of ss 3.11 and 3.28 of the Act necessitate consideration of the entirety of the circumstances of the accident in determining fault.
The claimant relies upon the decision of AAI Limited v Singh [2019] NSWSC 1300. It does not refer to any specific part of that decision. Rather, it refers to Kriske v QBE (Insurance) Australia Limited [2021] NSWPIC 247 at [134].
The insurer submits that the claimant is at fault as he was negligent in that his acts and/or omissions caused the accident which occasioned injury to the passenger.
It is therefore submitted that the claimant was wholly or mostly at fault for the purposes of ss 3.11 and 3.28 of the Act.
The insurer refers me to several other decisions of Members of the Personal Injury Commission (PIC), none which engages with the construction that I had given to the relevant legislation in ABZ. As the insurer does not appear to dispute the correctness of that reasoning, I do not consider the other decisions of the PIC to be of much assistance.
Claimant’s submissions
The claimant submits that the ambulance and police report make no determination as to fault and provides limited description of how the accident occurred.
Likewise, he submits little weight, if any, should be given to the factual report by the insurer’s investigator, which is predicated upon the evidence of Constable Colleen Jervis and the observations she made at the scene of the accident. He submits that Constable Jervis’s version is based on an informal interview that was taken at the scene of the accident and with the claimant, and he submits has been inconsistently recounted.
The claimant says that he had travelled between the speed of 85 to 90 kmph for approximately two to two and a half hours in the conditions before the accident without any issues. Prior to the accident, he was travelling at a speed of 90 kmph, which was 20 kmph below the speed limit. He said that he did this to adjust to the severe weather conditions.
He submits that he took all precautions available at the time. He submits that his motor vehicle was a 2009 ute with an empty tray causing more of a risk for the motor vehicle to slip off the curvy road. The ute had no traction control to the tyres.
He submits that I should find that the accident was caused by the severe weather conditions at the time and not by him.
REASONS
In ABZ v AAI Limited t/as AAMI [2021] NSWPIC 246 (ABZ) at [34] – [56] I set out in detail my reasoning for construing “fault” as it appears in the context of ss 3.11 and 3.28 of the Act as denoting tortious liability. I rely on that reasoning in this instance to conclude that a claimant, involved in a single vehicle accident, as in this case, and as was the case with the claimant in ABZ, cannot be found to be “wholly at fault” or mostly at fault. This is because, in my view, tortious liability under the Act is to be assessed through the legal prism of negligence as it is understood both in the common law and under the Civil Liability Act 2002 (NSW). The driver of a motor vehicle does not owe a duty of care to himself, such that he cannot be in breach of that duty and thereby, be at fault.
The insurer does not appear to dispute this reasoning. Rather, it contends that because the claimant owed duty of care to his passenger, therefore, he can be “at fault” because that duty is sufficient to enliven the operation of ss 3 .11 and 3.28 of the Act.
I reject this submission. The relevant question to be asked whether the accident was caused by “the fault of another person”. This pertains to liability for the accident. The mere fact that the claimant owes a duty to another person does not create for himself a liability for any harm occasioned to him by the accident.
As a single vehicle accident, not involving the fault of any other person, the subject accident falls to be considered under Part 5 of the Act which provides for a regime of deeming fault where the accident was a no-fault accident.
I note that Part 5 of the MAI Act has been relevantly amended at the time of writing this decision by the Motor Accidents and Workers Compensation Legislation Amendment Act 2022 No 25 (NSW), assented to on 16 June 2022 to omit the Part’s application to statutory benefits following the decision in AAI Limited v Singh [2019] NSWSC 1300; 90 MVR 1. However, at the time of the motor accident the Part applied to statutory benefits. The common-law principles which emerge from decisions such as Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7 at 267 and 281, Carr v Finance Corporation of Australia Limited [No 2] (1982) 150 CLR 139; [1982] HCA 43 at 147, Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117; [2012] HCA 19 at [26]-[31] and ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 at [26]-[27] and [48]-[52] are reflected in s 30 (1) of the Interpretation Act 1987. In particular, s 30 (1)(c) provides that any “right, privilege… acquired, accrued or incurred” is not intended to be affected. These words are to be given a wide construction: Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; [2004] HCA 63 at [96] and Chang v Laidley Shire Council (2007) 234 CLR 1; [2007] HCA 37 at [117] support this reading. Likewise, in my reading of both the MAI Act and the amending Act there is no clear expression of legislative intention that the amendment is to have retroactive effect.
The claimant has, by his submissions, averred that he was not “at fault”, which I construe as aligning with an averment by him that the motor accident was a no-fault motor accident, such that it falls to the insurer to actually persuade me otherwise: s 5.3 of the Act.
As I have already set out above, I am not satisfied that the claimant can be “at fault” or that the accident could be caused by the claimant’s fault. No allegation of contributory negligence is made by the insurer as it appears in the context of s 5.5 of the Act.
If I be wrong in this conclusion, and I am required as a matter of law to determine the claimant’s “fault”, the outcome would be no different. Logically, and as a matter of statutory constructional choice, the only alternative assessment that I consider the legislation bespeaks (but which I do not consider applies) is that I undertake, is an assessment of the claimant’s departure from the standard of care that he was required to take for his own safety: see e.g. Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36 (Axiak) at [85], albeit in another statutory context.
Considering the whole of the evidence and undertaking this assessment, I am not persuaded that the claimant has departed from that standard of care. This conclusion would apply equally on any assessment required under s 5.5 of the Act. My reasons for these conclusions are as follows:
(a) In negotiating the turn, the claimant’s evidence suggests that he had slowed his vehicle. He was not driving at a speed I consider to be excessive. Rather, I consider his speed to have been well within the limit appropriate for the conditions in which he was driving, as the evidence suggests his drive had been without incident prior to the collision despite the heavy rain.
(b) The fact the vehicle aquaplaned, I infer, having considered all the evidence, was caused by the build-up of water on the road by the increase in rainfall. As the claimant explained in his evidence, the rain had been heavy throughout the journey but had got worse in the period immediately before the accident. I infer from this that the build-up of water on the road caused a wedge of water build-up between the tyres and the road surface. This caused the claimant’s vehicle’s wheels to lose traction with the road and lift from the surface. When the vehicle’s tyres were no longer on the road, the vehicle was no longer responsive to steering, or braking. The excess of water coming between the connection of the claimant’s tyres with the road caused his vehicle to aquaplane. By reasons of this phenomenon, the claimant could not control his vehicle as he entered the turn and therefore his vehicle slid out to the side of the road colliding with the safety barrier.
46. I am not satisfied that the accident was caused by the claimant’s failure to slow down. Rather, it was the build-up of water on the road surface due to the intense weather conditions. Accordingly, I do not consider that the accident was caused by the claimant’s fault or by his contributory negligence as the concepts may be alternatively understood when viewed through a prism such as that analysed by Tobias AJA in Axiak at [83] – [87].
Costs and Disbursements
I am satisfied that the claimant is entitled to the payment of legal costs. I allow costs in the sum of $1,980 inclusive of GST.
Conclusion
For the purposes of s 3.11 the motor accident was not caused by the fault of another person.
Legislation
In making my decision I have considered the following legislation and guidelines:
· Motor Accident Injuries Act 2017 (NSW)
· Motor Accidents and Workers Compensation Legislation Amendment Act 2022 No 25 (NSW)
· Civil Liability Act 2002 (NSW)
· Interpretation Act 1987 (NSW)
· Motor Accident Injuries Regulation 2017 (NSW)
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