Ansari v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Ansari v Allianz Australia Insurance Limited [2022] NSWPIC 604
Claimant:	Ramis Ansari
insurer:	Allianz Australia Insurance Limited
Member:	Brett Williams
DATE OF DECISION:	3 November 2022
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims assessment matter; statutory benefits claim; single vehicle accident; claimant’s case was that as he proceeded through an intersection on his motorcycle he encountered a dip in the road; that the dip in the road caused his motorcycle to become unbalanced resulting in the motorcycle mounting the median strip and colliding with two poles; the insurer denied statutory benefits after 26 weeks on the basis that the accident was caused wholly by the claimant’s fault; whether for the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 the accident was caused wholly or mostly by the fault of the claimant; Held – claimant lost control of his motorcycle after his motorcycle entered a slight dip in the road at approximately 60km/h; claimant travelling too fast; accident caused by the fault of the claimant; no other party at fault; as the claimant was the only person whose fault was found to have caused the accident it followed that the accident was caused wholly by the fault of the claimant.
determinations made:	1. For the purposes of s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017, the motor accident on 7 July 2021 was caused wholly by the fault of the claimant

REASONS FOR DECISION

Background

Ramis Ansari (the claimant) was involved in a motor accident at Len Waters Estate on 7 July 2021 (the accident). The claimant was riding his motorcycle when the accident occurred. There were no other vehicles involved.
Following the accident the claimant made a claim for statutory benefits on Allianz Australia Insurance Limited (the insurer). On 29 October 2021 the insurer denied liability to pay the claimant benefits beyond 26 weeks on the basis that the accident was caused wholly by his fault. The insurer found that the claimant was at fault because he failed to maintain adequate control of his motorcycle. The insurer’s decision to deny liability for the claim was affirmed by an internal reviewer on 15 December 2021. The claimant disputes the insurer’s decision.
These proceedings are about whether, for the purposes of ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act) the accident was caused wholly or mostly by the fault of the claimant. The dispute is a miscellaneous claims assessment matter: Sch 2 MAI Act.
At the preliminary conference held on 18 July 2022 the claimant’s solicitor confirmed that the claimant entered a guilty plea in response to charges arising from the accident. The insurer sought, and was granted, leave to issue a direction for production on NSW police. Directions were made for the provision of further evidence and submissions relied on by the parties. Additional directions were made on 8 September 2022 with respect to the service of evidence and submissions.
The parties agree that the proceedings can 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

The material relied on by the parties is contained in a joint bundle[1]. The bundle contains an Ambulance Electronic Medical Record dated 7 July 2021 (the Ambulance Report). The Ambulance report contains the following history:
“CT 24yoM has lost control of motorbike, taken out a street sign and landed on a roundabout. PT claims to have been in 1^st gear no more than 60km/h. Motorcycle resting 5-10m from patient. 20+ metres from pole struck, forkes snapped, wheel no longer attached and bike significant damage…”
[1] AD3.
The following version of the accident was provided by the claimant to Constable Li on 27 July 2021[2]:
“From stationary stop I went straight into the complex. Going 50km ph, there was a slight dip in the intersection and then lost balance at that point. Then the throttle cut triggered instead of the front [indecipherable] break [sic]. That’s where the front tyre went up on the median strip and struck the no right turn pole.”
[2] Taken from Constable Li’s notebook produced by NSW police in response to a Direction for Production.
In his application for statutory benefits (claim form) dated 3 August 2021 the claimant described the accident as follows:
“I was travelling [on] a motorbike…and to the best of my recollection, I was crossing the intersection of Cowpasture Road & Airfield Drive when all of a sudden and without warning I encountered a dip in the road. The dip caused my motorbike to become imbalanced and resulted in the bike going up a median strip and colliding with 2 poles.”
The NSW police report dated 9 August 2021 records that the accident happened in the following circumstances:
“About 4:15pm on Wednesday 7th July 2021 Vehicle 1 was travelling east along Airfield Drive Len Waters estate. Vehicle 1 travelled through intersection of Cowpasture Rd. As vehicle 1 entered the driveway of Len Waters estate it lost control and as a result the front of vehicle 1 as collided with a no right turn and no left turn sign located on the median strip.”
There is a transcript of the interview between the insurer’s investigator and Constable Li on 21 September 2021. The Constable confirmed that he was the officer in charge of the investigation into the accident. The accident occurred at about 4.30pm. He attended the accident scene about 10 minutes after the accident occurred. Fire Brigade and ambulance attended the scene. On arriving at the scene he observed two damaged poles and a badly damaged motorbike, that “looked like it was a write off”. The physical evidence at the scene was two damaged poles and skid marks. He described the claimant at the scene as looking “pretty shaken up”. The claimant’s motorcycle had been “torn apart”. He described the accident location as a large commercial complex car park.
In terms of his understanding of the circumstances of the accident, Constable Li stated as follows:
“Q78        …What is your understanding of what happened during the collision?
A      …he went through…so, as he was coming through Cowpasture Road there was…it was a slight dip on the road and he accelerated too quick and lost control of the motorbike and crashed into the pole.
Q79 …So is this dip, is this a visible dip? Is this something that you sighted yourself?
A      No. That’s what he told me.
Q80 …Did you observe any dips in the road or…
A      No, I didn’t…
…
Q82 …Are you aware what speed the motorcycle was travelling at the time of the collision?
A      No, I was not aware of the speed.
Q83 …
A      He told me he was going sixty.”
Constable Li confirmed that he gave the claimant a ticket for negligent driving.
There is a transcript of interview between the insurer’s investigator and Mohamed Warach, a witness to the accident. Mr Warach had known the claimant for more than 10 years before the accident[3]. The transcript includes the following account of the accident:
“Q10 …
A …I was just waiting for my mate…I was waiting at Gloria Jean’s…just gonna catch up for coffee…and he crossed the intersection…and then hit on the road…where the intersection ends…and once he went through that he lost control of the bike…and hit the poles and then went rolling down…”
[3] Transcript of interview dated 21 September 2021 – answer to question 12.
Mr Warach refers to a “dip” in the road. The transcript continues:
“Q22 …
A      …I don’t know if it’s used for like drainage…that’s why there’s a dip there but I don’t know what the purpose of the dip is but there’s definitely a dip that starts from where…’cause it’s opposite side of Gloria Jean’s with McDonalds and it starts from back end, the dip and it ends and it goes all the way across to...the Gloria Jean’s side…
Q27 Have you driven it yourself?
A       Have I driven over the dip?
Q28 Yeah
A      Oh, yeah. You have to, you have to go into the…dip, yeah.
Q29 And is that dip something that makes you modify your driving or your riding a little bit like do you have to slow down for it or…
A      So, when you’re, when you’re turning right from that light if you’re going with the flow of the traffic like you really can’t see the car in from of you…but if you’re like…once you go over it you feel it like you can tell that there was a dip in the road…
Q30 …
A      Like it’s not something that you’d like drive and you would notice that…the dip, if that makes sense…
…
Q57 …travelling on Airfield Drive?
A      Yeah. Airfield Drive. Yeah. I’m pretty sure that’s it. Airfield Drive, he was on that coming straight into Gloria Jean’s and he was waiting at the lights…
Q58 …
A      …and then when the light went green he crossed that intersection…
Q59 …
A      …and then when he went into that dip that’s when he hit it…
Q60 And how were the traffic conditions?
A      …I don’t really know to be honest with you.
…”
The claimant has given a statement dated 12 January 2022. He states that the weather on the day of the accident was sunny and clear, that he was “not in a rush” and that there was “minimal traffic on the road at the time”. Relevantly, he gives the following evidence:
“12. On or around 4:15pm, my motorcycle was stopped at a red light. The road on which I was travelling on has a speed limit of 60km/h.
13.    Upon the light turning green, I proceeded towards the intersection at a gradual pace of approximately 40-50km/h.
14.    I specifically recall being under the speed limit as the distance between the traffic light and the location where the accident occurred was approximately 6-10 meters which gives minimal room to speed and accelerate.
15.    All of a sudden and without warning, I encountered a dip in the road. There were no warning signs or signals to indicate to take caution in this area. The dip caused my motorcycle to become unbalanced and resulted in my motorcycle going up a median strip and colliding with two poles.
16.    Although I reside in the area, I do not frequent that road often. I am likely to use alternate routes to get to my usual destinations.
17.    In the event that I would travel along this road, I would be in a car rather than on my motorcycle. This was my first time driving to Gloria Jeans located at 515 Cowpasture Road…in my motorcycle.
18.    I have never experienced the subject dip when driving my car, as I believe the impact from the dip in the road is far less adverse and less detectable when I am driving my car. I was not aware of, nor anticipating the dip in the road…
…
21.    I do not believe I am at fault for the accident and it was the dip on the road that caused my motorcycle to become unbalanced which then resulted in the accident…”
The claimant states that he was charged with negligent driving with respect to the accident. He states that he elected to take the matter to court and plead not guilty. He represented himself at court. He states that following discussions with the prosecutor he entered a plea of guilty. He was ordered to enter into a conditional release order for nine months. He was not required to pay a fine.
The claimant states that the accident was due to the poor construction of the road. He states that he “believe[s] the dip in the road is quite dangerous and there should be some warning sign erected in the area to alert other vehicles”. He further states that he “believe[s] the Roads and Maritime Services (RMS) may be responsible for the maintenance and repair of the subject road with the dip on the road in which the accident occurred.”
On 28 June 2022, in response to questions from the insurer’s investigator[4], the claimant provided the following description of the accident:
“To the best of my recollection: I was waiting at the traffic light & when it turned from red to green I proceeded riding, after riding through the intersection, towards the end of the road there was a dip in the road (no warning or sign), when I suddenly went through this dip at the speed of probably 40/50 KMs/ph. It made my bike unbalanced and caused it to be directed towards the median strip, the road isn’t straight and the large median strip interferes with the road. Once my bike wen up the median strip, I lost control and I was unable to redirect it to the road and thus, collided into 2 poles on the median strip.”
Q. Who do you feel is to blame for the collision and why?
“The construction of the road and median strip. The dip in the road is dangerous and the median strip is unnecessarily large and interferes with the road, causing a turn in the road. No signs of dip or warning either.”
[4] Sent to his solicitor under cover of letter dated 30 August 2021.

CLAIMANT’S SUBMISSIONS

The claimant’s case is that:
(a)    prior to the accident he was stationary at a red light;
(b)    when the lights changed to green he proceeded through the intersection;
(c)    as he proceeded through the intersection he encountered a dip in the road;
(d)    there were no warning signs or signals to indicate a need to take caution along the road;
(e)    the dip in the road caused his motorcycle to become unbalanced, resulting in the motorcycle mounting the median strip and colliding with two poles;
(f)    he does not frequent the road on which the accident occurred often, despite living in the area. On the odd occasion he travelled on the road he would be in his car rather than his motorcycle. Accordingly, he was not accustomed to or anticipating the dip in the road, and
(g)    the short distance between the traffic lights where he was stationary to the dip in the road allows minimal room to accelerate and speed.
The claimant argues that his guilty plea to the negligent driving charge is not binding for the purposes of these proceedings.
The claimant submits that the accident was caused by the dip in the road rather than his actions, and that the accident was caused neither wholly or mostly by his fault

INSURER’S SUBMISSIONS

The insurer argues that there is no evidence of a dip or malalignment in the road that would give rise to fault or negligence of any other party. The insurer submits the claimant failed to maintain proper control of his motorcycle which caused the motor vehicle accident.
The insurer submits that there is no evidence that the claimant’s motorcycle suffered mechanical failure that could have led to the throttle being triggered.
The insurer argues that the claimant failed to take evasive action and failed to keep a proper lookout.
The insurer argues that a reasonable person approaching an intersection would slow down and apply the brakes. The insurer submits that the claimant could have avoided the accident by either slowing down or braking.
The insurer submits that the claimant’s actions were the cause of the accident and that he is wholly at fault for the accident.

DETERMINATION

Factual findings

The evidence satisfies me, and I find, that on 7 July 2021 at approximately 4.15pm, the claimant was riding his 2016 Yamaha MT07 motorbike along Airfield Drive in a generally easterly direction. I accept his evidence that he stopped at a red light at the intersection of Airfield Drive and Cowpasture Road. I also accept his evidence that when the light turned green he proceeded to cross Cowpasture Road towards the driveway of Len Waters Estate.
I accept the claimant’s evidence that there were no mechanical issues with the motorcycle and that it was in good condition.[5]
[5] Claimant’s statement dated 12 January 2022 at [9].
I accept as accurate the entry in the NSW police report that weather conditions were fine and dry. The entry is consistent with the claimant’s evidence that it was sunny and clear[6].
[6] Statement dated 12 January 2022 at [7].
I find that the speed limit for the stretch of road along which the claimant was travelling at the time of the accident was 60kph. I accept the claimant’s evidence in this regard[7], which is consistent with the speed limit recorded in the NSW police report.
[7] Statement dated 12 January 2022 at [12].
The earliest account of the claimant’s speed at the time of the accident in the evidence before me is contained in the Ambulance Report, which records that “PT claims to have been in 1st gear no more than 60km/h.” The statement taken by Constable Li from the claimant on 27 July 2021 records that he was “[g]oing 50km ph”. The claimant’s statement dated 12 January 2022 records that he “proceeded towards the intersection at a gradual pace of approximately 40 – 50km/h”. He states that he “specifically recall[s] being under the speed limit”.
There is no submission that the history recorded in the Ambulance Report is incorrect or inaccurate. Indeed, in his submissions, at [10], the claimant appears to place reliance on the Ambulance Report in terms of his speed.[8] I find that the speed recorded in the Ambulance Report was provided by the claimant to ambulance officers who attended the accident scene. As the Ambulance Report is the most contemporaneous record of his speed, and was prepared before the claimant was charged with negligent driving, I consider that it is likely to be the most accurate record of the speed at which the claimant’s motorcycle was traveling at the time the accident occurred. I find, on the balance of probabilities, that at the time the accident occurred the claimant’s motorbike was travelling at a speed of approximately 60kph.
[8] The claimant’s submissions dated 12 January 2022 state at [10] “Contemporaneous ambulance records also confirms the speed and manner in which the claimant was travelling prior to the accident”.
The claimant’s case is that as he proceeded through the intersection he encountered a dip in the road, and that the dip in the road caused his motorcycle to become unbalanced, resulting in the motorcycle mounting the median strip and colliding with two poles.
There are a number of photographs contained in the joint bundle. I remind myself of the caution that must be deployed when using photographs: see for example Blacktown City Council v Hocking [2008] NSWCA 144 (Hocking). However, as was said in Taitoko v R [2020] NSWCCA 43 at [81], “Each case will depend on the particular photograph and the particular purpose for which it is sought to be deployed”.[9]
[9] An approach endorsed by Leeming JA in Aerolink Air Services Pty Ltd v Bankstown Airport Ltd [2022] NSWSC 587 at [25].
The photographic evidence includes photographs contained in the material from the investigator instructed by the insurer. It is stated above photograph 3 that “Photograph 3 depicts dip in the road at the intersection of Airfield Drive and Cowpasture Road”. I am not able to decern any dip in the road in photograph 3, or any other photograph that is in evidence. However, accepting the limitations on the use to be made of photographs (as discussed in Hocking), I am not prepared to make any findings, or draw any inferences, about whether or not there was a dip in the road based on the photographs.
There is no reference to a dip in the road in the Ambulance Report. The version of the accident taken from the claimant by Constable Li on 27 July 2021 refers to a “slight dip in the intersection”. The claim form refers to “a dip in the road”. The claimant’s statement dated 12 January 2022 records that he “encountered a dip in the road”. Mr Warach’s evidence, which is set out earlier in these reasons, is that there is a dip in the road.
Constable Li stated, in his interview with the insurer’s investigator, that he did not observe any dips in the road. It is not clear from the transcript whether the Constable looked for a dip, or even whether the claimant said anything to him on the day of the accident about a dip. The Constable’s notebook does not contain any statement or version of events from the claimant taken on the day of the accident. The transcript of interview with Constable Li records that he “asked the [claimant] to give a version but he was obviously not in a fit state to give a version at that time”.[10] The claimant’s account of the accident, as it appears in Constable Li’s notebook, was taken on 27 July 2021. That account refers to a “dip in the intersection”. The inference I draw from this evidence is that the first time the Constable obtained a version of the accident from the claimant, and became aware of the possible involvement of a dip in the intersection, was on 27 July 2021.
[10] Transcript of interview with Constable Li dated 21 September 2021 - answer to question 26.

I find, on the balance of probabilities, that there was a slight dip in the road at or about the entry to the driveway of Len Waters Estate. I prefer the evidence of the claimant and Mr Warach in this regard.
I accept the claimant’s evidence that, although he resides in the area, he did not frequent the road on which the accident occurred often[11].
[11] Claimant’s statement dated 12 January 2022 at [16].
The claimant’s statement records, and I accept, that “[i]n the event that [he] would travel along this road, [he] would be in a car rather than on [his] motorcycle” and that “[t]his was [his] first time driving to Gloria Jeans…in [his] motorcycle”.[12] I find that, prior to the occasion on which the accident occurred, the claimant had not ridden his motorcycle through the entry to the driveway of Len Waters Estate where the accident occurred.
[12] Claimant’s statement dated 12 January 2022 at [17].
The claimant’s statement records as follows, at [18]:
“18. I have never experienced the subject dip when driving my car, as I believe the impact from the dip in the road is far less adverse and less detectable when I am driving my car. I was not aware of, nor anticipating the dip in the road…”.
The transcript of interview with Mr Warach records, with reference to the dip:
“ …it’s not something that you’d like drive and you would notice that…the dip…”[13]
[13] Transcript of interview dated 29 September 2021 - answer to question 30.
On balance, I accept the claimant’s evidence that he was not aware of the dip in the road. Further, I am not satisfied that the claimant ought to have been aware of the dip. He had not frequented the road on which the accident occurred often, and when he did so it was in a car. I am satisfied that the dip was slight, and that it was something that he would not have noticed when traveling in a car.
I find that the claimant lost control of his motorcycle after his motorcycle entered a slight dip in the road at or about the entry to the driveway of Len Waters Estate at approximately 60kph.
Photographs of the accident scene, that appear to have been taken on the day of the accident, were produced by NSW police in response to a direction for production. The photographs depict a damaged street sign on a median strip. Although I cannot be sure of the angle, the sign is at a distinct lean.
The photographs produced by NSW police, together with the evidence of the claimant, Constable Li and Mr Warach, satisfy me, and I find, that after the claimant lost control of his motorcycle the motorcycle mounted the median strip and collided with a street sign located on the median strip that divided the road at the entrance to the Len Waters Estate.
I find that the claimant’s motorcycle suffered significant damage as a result of the accident. In this regard, I accept Constable Li’s evidence that the motorcycle was badly damaged and that the “front end was torn apart”. The claimant’s evidence is that the motorcycle was “written off”.

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 MAI Act defines fault as negligence or any other tort.
Divisions 1–4 and 8 of Part 1A of the Civil Liability Act 2002 (CL Act) apply to motor accidents. Section 5 of the CL Act defines negligence as “…failure to exercise reasonable care and skill.” Sections 5B (Duty of care - General principles) and 5D (Causation – General principles) of the CL Act apply to the claim.
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 consider that the exercise of reasonable care by a motorcycle rider, whether they were familiar with the area or not, required that they enter the Len Waters Estate at less than 60kph. I have found that, prior to the occasion on which the accident occurred, the claimant had not ridden his motorcycle through the driveway of the Estate where the accident occurred. I find that a reasonable person in the claimant’s position would have approached the driveway with caution, and at a speed of less than 60kph.
I find that traveling on his motorcycle towards the driveway of the Estate at approximately 60kph was a failure by the claimant to exercise reasonable care and skill in the riding of his motorcycle. I find that riding his motorcycle at that speed was a necessary condition for the accident to occur.
I find that had he travelled at an appropriate speed, the claimant would not have lost control of his motorcycle after his motorcycle entered the slight dip in the road.
I have taken into account the probability that the accident would occur if care were not taken, the likely seriousness, and the minimal, if any, burden of taking precautions to avoid the risk.
I find that the accident was caused by the fault of the claimant.
I am not satisfied that the presence of the slight dip in the road bespeaks fault on the part of any other person or entity. I find, on the evidence before me, that the accident was not caused by the fault of any other person or entity.
As the claimant is the only person whose fault has been found to have caused the accident, it follows that the accident was caused wholly by the fault of the claimant.
For the purposes of s 3.11 and s 3.28 of the MAI Act, I find that the accident was caused wholly by the fault of the claimant.

COSTS

The claimant has made no submissions in relation to costs. The outcome of the proceedings does not preclude the claimant from recovering his reasonable and necessary legal costs in connection with the proceedings in accordance with Part 8 of the MAI Act.
If the parties are unable to reach agreement in relation to the claimant’s legal costs they can apply to the Commission for a determination of the costs dispute.

[2022] NSWPIC 604

3 November 2022