Attard v Insurance Australia Ltd t/as NRMA Insurance
[2024] NSWPIC 44
•7 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Attard v Insurance Australia Ltd t/as NRMA Insurance [2024] NSWPIC 44 |
| CLAIMANT: | John Attard |
| INSURER: | Insurance Australia Ltd t/as NRMA Insurance |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 7 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims dispute pursuant to schedule 2 clause (3)(d) & (e); dispute as to whether the claimant is wholly or mostly at fault under section 3.11 and 3.28; head on collision in Wilberforce; dispute as to onus of proof; whether the insured had travelled to the incorrect side of the road; unable to make findings of fact as to certain aspects of the collision; Held – claimant not wholly or mostly at fault; insurer bears onus; insurer had not discharged onus; exceptional costs claim made pursuant to section 8.10(4)(b); maximum regulated costs allowed. |
| DETERMINATIONS MADE: | CERTIFICATE 1. For the purposes of s 3.11 the motor accident was caused by the fault of another person. 2. For the purposes of s 3.28 the motor accident was not caused mostly by the fault of the injured person. 3. Legal Costs: costs are awarded in favour of the claimant in the total amount of $3,838 plus GST. |
STATEMENT OF REASONS
INTRODUCTION
Mr John Attard (the claimant) is a 58-year-old man who on 8 March 2022 was driving, on his way home, in Wilberforce when he suffered injury in a motor accident. A head on collision occurred with a vehicle travelling in the opposite direction. The claimant suffered significant injuries and was airlifted from the scene to Westmead Hospital.
A miscellaneous claims dispute has arisen between the parties as to whether the claimant was wholly or mostly at fault for the accident pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act2017 (MAI Act).
The claimant lodged an Application for Personal Injury Benefits (claim form) on or about 13 March 2022 with Insurance Australia Limited t/as NRMA (the insurer), the insurer of the vehicle the claimant considers at fault, on or about 13 March 2022.
Liability for payment of statutory benefits was initially accepted by the insurer. However, in a notice dated 5 August 2023 the insurer denied ongoing benefits beyond 26 weeks on the basis that the claimant was considered as being wholly at fault for the accident.
An internal review was requested and the insurer affirmed the original decision in a determination dated 24 August 2023.
An application was subsequently lodged with the Personal Injury Commission (Commission) seeking a determination of the dispute. The matter has been allocated to me as a Member of the Commission.
I held one teleconference with the parties on 6 October 2023. The parties agreed the matter was ready to proceed to assessment and an assessment conference was requested on behalf of the claimant. I agreed to this request.
An assessment conference took place via Microsoft Teams on 15 November 2023. The claimant gave evidence at the conference. The insured driver was not available to give evidence.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and the reply and all additional material provided by the parties.
LEGISLATIVE FRAMEWORK
Section 3.11 of the MAI Act provides as follows:
“(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%.”
Section 3.28 of the MAI Act provides as follows:
“(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%.
(3) 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.”
Pursuant to Schedule 2 cl (3)(d) & (e) of the MAI Act, a dispute relating to ss 3.11 and 3.28 are declared as miscellaneous claims assessment matters for the purposes of Part 7 of the MAI Act.
Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment.
SUMMARY OF EVIDENCE
The insurer arranged for a factual investigation to occur. I have considered the resultant report of AHC Investigations dated 15 August 2022. The investigators interviewed and obtained a statement from the claimant. The insured driver declined the investigators’ request for an interview. The investigators interviewed Senior Constable Belinda Ryan of the NSW police.
The claimant’s versions of events
The claim form
In the claim form the claimant described the accident in the following way “I was heading towards Satters Rd. The other vehicle was coming out of the bend and headed straight towards me.” The description is accompanied by a diagram which depicts the claimant on the correct side of the road and the insured vehicle partly within the claimant’s lane veered towards the claimant.
The claim form did not form part of the parties’ bundles and was provided just prior to the assessment conference. I allowed the document to be included in the material for me to consider noting there could be no prejudice to either party given it has been in the possession of the parties since the beginning of the claim. I also consider it a relevant document for the purposes of me reaching a determination.
Claimant’s statement dated 9 May 2022
The statement was finalised after two separate interviews of 29 April 2022 and 2 May 2022 between the claimant and the insurer’s investigators, AHC Investigations.
The claimant was driving his black 2010 Toyota Hilux Table Top ute at the time of the accident.
He was driving in an easterly direction along Old Sackville Road on his way home, which would have involved him turning left into Salters Road, approximately 100 metres from the accident scene.
The weather conditions at the time were heavy rain, and the claimant describes the roadway as slippery and wet. The claimant explains that in the 12 hours prior to the accident the roads had been flooded and he had been at home, until around 2.00pm on the day of the accident when he decided to go to Wilberforce shops to get lunch. It was on his way home from this trip that the accident occurred.
The claimant states he was travelling at around 60kmph, being the relevant speed limit.
At around 100 metres from Salters Road, the claimant states that he saw a yellow four wheel drive vehicle coming towards him on the claimant’s side of the road. The claimant states at paragraph 33 of the statement:
“I can’t say what speed the car was travelling at. I could not see the driver, it happened very fast. I remember seeing the car coming at me and I slammed on my brakes as a first reaction. My car slid straight ahead as I brake and then we had a head-on collision.”
The claimant states that he lost consciousness.
Version of events given to the NSW police by the claimant on 22 April 2022
Senior Constable Belinda Flynn was interviewed by AHC Investigations, and before me is a copy of the transcript of interview dated 19 May 2022. The officer read into the record the following version of events of the claimant. The claimant was not interviewed at the scene owing to his injuries. The interview took place at some time after. The version of events given by the claimant is transcribed relevantly as follows:
“...I went down to Wilberforce to get some lunch on the way on Sackville Road about a hundred metres off my road that I live in. I was travelling on my side of the road. The road was wet and slippery and about a hundred metres turning into my street the…I was travelling in an East direction, is only a two lane road. One road either side and as I was coming roughly around a hundred metres from my street, I saw a yellow four wheel drive on my side of the road. I slammed on my brakes and I was trying to make my car follow the bend but with it being wet, the car slid straight ahead and I remember hitting the four wheel drive. I remember hearing a loud bang and I think I must have got knocked out. I don’t know how long. I couldn’t say how long I was unconscious for. Then I remember waking up inside the car and seeing glass all over me and seen more inside the car and that’s it…”
The claimant went on to say he was travelling 60kmph, the roads were wet and he was around one hundred metres off his home street. The officer arrived at the scene around 10 minutes after the accident with two other officers.
The insured’s version of events
The insured declined to be interviewed by the insurer’s investigators and therefore did not provide a statement. However, he did provide a version of events to the NSW police. The transcript of interviewed with Senior Constable Flynn includes the version transcribed relevantly as follows:
“…I just left work. I was coming around the bend. The guy was driving in the opposite direction. I thought he might have been trying to stop me. I don’t know how fast he was going but it was pretty quick for that damage. He was in his lane when I first saw him. Then he swerved into my lane and hit me head on. The impact just tipped me over.”
The insured told police that he was travelling around 50 to 60kmph. The officer confirmed that no question was put to the insured driver about whether he was using a mobile phone.
Other evidence
The insurer’s investigator asks Senior Constable Flynn a number of questions regarding the accident and how it may have occurred. A lot of the questioning is quite leading and includes a lot of commentary as to a likely scenario. I consider this exchange to be of limited value as it is mere conjecture.
The officer however confirmed that there was no question of excessive speed of either driver. No witnesses were identified and no video footage was obtained that could assist with the investigation.
The investigation report of AHC Investigations dated 9 May 2022 includes a number of photographs of the relevant stretch of roadway. It depicts a two lane roadway, with a lane for eastbound traffic and a lane for westbound traffic. The road way is sealed with no kerb and guttering. Some grassy vegetation is shown on both sides of the road. The roadway is defined with a double white line in the centre.
A number of the photographs depict the travel direction of the insured driver approaching a right hand bend on Old Sackville Road which is situated before the accident scene ahead.
Further evidence from NSW police
AHC Investigations obtained the NSW police file under the Government Information (Public Access) Act 2009. This file was provided under cover of letter dated 6 September 2022.
The file includes a “COPS” report and a description of accident is included, created on 8 March 2022. It has the claimant described as “driver one”, driving “vehicle one”. The insured driver is described as “driver two”, driving “vehicle two.” It relevantly states as follows:
“As vehicle two approached the bend vehicle one lost traction in the wet weather and slide into the opposing lane. Vehicle one made front on contact with vehicle two, causing a significant collision. The collision caused vehicle two to flip on it’s left side, the driver was able to escape the vehicle with nil injuries.
Driver one was trapped his vehicle. The vehicle had significant damage to the front causing the legs of the driver to be trapped.
…
Police obtained a written version off driver two at the scene…
Police crash investigators attended the scene and determined the vehicle at fault and cause of accident. This correlates with the version of driver two.”
The “COPS” report also includes a site diagram. It shows the claimant’s vehicle straddled across the two lanes and the insured vehicle off the side of the vehicle to the right. The diagram includes the words “impact location on road unknown.”
The NSW police case report notes the lack of independent witnesses, video footage or any other evidence for “…Police to prove beyond reasonable doubt that one party is at fault over the other.”
It is noted that the investigation unit has given an opinion on who was at fault, it is stressed this is just an opinion. Therefore, no action was taken against either driver. The crash investigation unit did not attend the scene, however, reviewed the matter and agreed with the assessment of the attending officer. The crash investigation officer did provide an opinion that on the limited information he was of the opinion that the claimant had crossed over to the incorrect side of the road.
The police file includes a number of photographs taken at the scene of the accident. The photographs demonstrate that this was a serious accident, with the claimant’s vehicle sustaining significant front end damage. The insured vehicle is on its side to the side of the road and the claimant’s vehicle is situated over the double lines facing the side of the road where the insured vehicle lay. The claimant’s vehicle is a black utility with an aluminium looking table top utility tray. The insured vehicle is a bright yellow Toyota four wheel drive with a green “P plate” attached to the registration plate. The vehicle also has a black bulbar attached to the front.
Traffic engineer report of Michael Griffiths, Road Safety Solutions dated 26 May 2023
This report was prepared at the request of the insurer.
Mr Griffiths has examined the evidence, and in particular the photographs taken by NSW police at the scene of the accident. He notes that the insured vehicle came to rest on its left side facing a westerly direction on the outside of the bend in the roadway.
He notes the claimant’s vehicle straddling the centreline facing in a generally southerly direction. He suggests that the claimant’s exposed right front tyre probably provided a ‘ramp’ to lift the right side of the insured vehicle, causing the rollover.
From analysis of the position of the vehicles at rest, and the damage sustained, Mr Griffith’s primary opinion reached is that the claimant’s vehicle travelled across the centreline whilst the insured driver was travelling directly ahead in the alignment of its lane. Mr Griffith’s states:
“…this opinion takes account of the claimant’s report that his Hilux failed to continue on the bend. Fi the Hilux wasn’t continuing on the bend, then it would have been travelling in a straight line, which would have taken it across the centreline into the lane for oncoming traffic.”
The report includes a helpful aerial view picture of the location of the accident. It demonstrates the vehicles approaching a bend in the relevant section of roadway – to the left for the claimant and to the right for the insured.
It also includes a further aerial picture with the approximate rest positions of the vehicles. It depicts the vehicles at rest at the relevant bend.
Mr Griffith’s was asked to conclude which of the two vehicles crossed onto the incorrect side of the road. Mr Griffith’s concludes that the physical evidence is such that it is only consistent with the claimant having crossed to the incorrect side of the road.
When asked whether the position of the vehicles was sufficient to determine fault, Mr Griffith’s states:
“The rest positions of the vehicles are sufficient to determine that it was the claimant’s vehicle which crossed the centreline so as to be on the wrong side of the road.
Further substantiation then comes from the damage pattern on the two vehicles, and the claimant’s description of this vehicle losing traction and failing to follow the curve, which means inevitably that his vehicle crossed the centreline of the roadway so as to be the vehicle which was on the wrong side of the road when the two vehicles came into impact.”
SUBMISSIONS
Claimant’s submissions dated 3 September 2023
The claimant does not cavil with Mr Griffith’s findings that the claimant’s vehicle crossed to the incorrect side of the road.
The submissions assert that the insured vehicle came around the bend to the outside taking him across the centre line. As a result the claimant reacted by braking hard and to “swerve to the right” to try and avoid him. It is suggested that the insured then swung his vehicle back to the correct side of the road and this explains how the accident occurred on the incorrect side of the road for the claimant.
The submissions suggest that the insurer has not grappled with the question of what caused the claimant to enter the wrong side of the road. It is submitted that the claimant has been consistent all along that he attempted to avoid a head on collision by braking and swerving to the right. The submissions refer to the conversation between the investigator and the Senior Constable. I have noted above that I do not consider this to material to which I should hold any weight. It is mere conjecture of opinion.
Insurer’s submissions dated 28 September 2023
The insurer states that it does not follow the claimant’s submission that it is necessary to consider what caused the claimant to travel onto the incorrect side of the roadway. It is submitted: “the claimant concedes his vehicle travelled to the incorrect side of the roadway and that the insured was in his correct lane at the time of the impact. It is difficult to see in the circumstances how the insured can be responsible for the accident.”
The insurer concludes that the evidence is consistent with the claimant being wholly responsible for the accident.
EVIDENCE AT THE ASSESSMENT CONFERENCE
As mentioned above, the insurer was not able to secure the insured driver to attend to give evidence. The only person who gave evidence was the claimant himself. He was questioned by his lawyer, Stephen Firth and was also questioned by counsel for the insurer, Nick Ghabar.
The claimant gave evidence that he was very familiar with the subject stretch of road given its proximity to his home. He stated that he has observed many vehicle cut the corner on the subject bend where the accident occurred. When asked, he denied that he himself ever cuts the corner. He explained that he however sees it happen all the time and that he “hates” people doing it.
In respect of the accident the claimant stated that he saw a yellow four wheel drive coming towards him on his side of the road. He stated on several occasions that his first reaction was to slam on his brakes. He stated that his vehicle locked up and there was no steering.
The claimant also confirmed that he has some difficulty with reading. There was some confusion and contradiction during the evidence as to whether the claimant himself filled out the claim form. Ultimately, I was satisfied that the claim form was completed by the claimant’s wife and he signed it.
Mr Ghabar put to the claimant that the visibility at the time of the accident was limited due to heavy rain. The claimant confirmed that it was raining heavily and that he had his windshield wipers on, however, denied that he was unable to see the road and explained that he clearly saw the insured vehicle and that the vehicle was on the incorrect side of the road.
The claimant repeatedly stated that when he saw the insured vehicle he hit his brakes heavily and that his vehicle locked up and he travelled straight ahead rather than the vehicle following the bend in the road.
Upon further questioning about what happened after the claimant applied the brakes, the claimant seemed confused about exactly what happened, whether his vehicle locked up and whether his intention was to have veered to the left. There was also questioning on how far away the insured vehicle was when the claimant first saw it. The claimant had stated in his statement that the vehicle was 10 to 15 metres away. Under questioning the claimant seemed to suggest that he can’t be sure how far away, and he was only trying to estimate. He stated that it occurred quickly and he considered the insured vehicle to be close.
The claimant was also directed to the various diagrams of the accident that form part of his versions of events. It was noted that they depict the insured vehicle on the incorrect side of the road. The claimant conceded that the diagram was to depict the collision occurring on the claimant’s side of the road. The claimant agreed that he had not conceded in any statement or in his claim form that his car had veered onto the incorrect side of the road. He appeared to concede during questioning that his car did in fact end up on the incorrect side of the road.
Whilst the claimant gave evidence that his car went straight into the incorrect side of the road due to his brakes locking up, he later seemed to concede that he may have veered to the right. He explained that it happened “so quick” and he could have steered to the right or to the left and he could not recall exactly what happened.
FINDINGS AND REASONS
Where does the onus of proof lay?
Shortly before the assessment conference date I was provided with a list of authorities by the insurer. The authorities included cases such as Nesterczuk v Mortimore (1965) 115 CLR 140 and Flounders v Milla [2007] NSWCA 238. These authorities were referred to by counsel for the insurer during submissions at the assessment conference.
The various cases were relied upon to support a submission that on the evidence the claimant had failed to discharge his onus of proof and therefore the dispute should be decided in favour of the insurer.
I put to Mr Ghabar that the authorities relied upon were relevant to disputes where the plaintiff/applicant held the onus of proof, and that I understand that the onus of proof in the current disputes lays with the insurer. I noted that ss 3.11 and 3.28 of the MAI Act are disentitling provisions and accordingly it was the insurer that must hold the onus. This point was not expressly conceded.
However, I find that the insurer bears the onus of proof on the basis that it is the insurer that has denied liability for ongoing statutory benefits on the basis that the claimant is wholly/mostly at fault. I note that the court confirmed such view in the case of Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909.
Findings of fact
Having carefully considered the evidence that forms part of the claimant’s application and the insurer’s reply, and the evidence given at the assessment conference, I am unable to satisfactorily make findings in respect of some elements of the collision dynamics.
It is clear, however, on the evidence and appears to be conceded by the claimant, that the collision occurred on the insured driver’s side of the road. In other words, at some point, and for some reason, the claimant’s vehicle ended up on the incorrect side of the road just prior to the impact occurring.
What I am unable to ascertain with sufficient certainty from the evidence, is exactly how and why the claimant’s vehicle on the wrong side of the road. I therefore make no findings in this regard.
However, I am sufficiently satisfied on the evidence that on the balance of probabilities, leading up to the accident occurring, and as both vehicle were negotiating the subject bend on the roadway, the insured vehicle was at least partially on the incorrect side of the road. I also accept that the claimant, whilst negotiating the bend, was on the correct side of the road.
I am unable to make a finding with sufficient certainty, on the balance of probabilities, as to how and why the insured vehicle returned to the correct side of the road. It may be that the insured driver reacted to the situation and veered back to his left. On the evidence, I am unable to make such a determination, particularly in light of the insured driver not being made available to give evidence or even a more fulsome statement.
I also find on the evidence that the claimant’s immediate reaction to being faced with such scenario was to apply the brakes heavily.
In making these findings, having observed the claimant give evidence, I consider the claimant to be a witness of truth who made an earnest effort to give truthful answers to all questions and propositions put to him. I note that there were some inconsistencies in his evidence in regard to what precisely happened after applying his brakes, and the reasons why his vehicle ended up on the incorrect side of the road. I formed the clear impression during the assessment conference that these inconsistencies were a result of the claimant hypothesising, and effectively applying hindsight reasoning. I find that in fact, the claimant has no clear recollection at all as to what his actions were and the events that occurred after applying his brakes. This is understandable given the frightening situation he found himself in and if it were the case that he veered to the right, thereby effectively ensuring a collision occur, such action was taken in the agony of the moment. I therefore, consider that the claimant did not deviate from the actions of a reasonable person who would find themselves in such a situation.
Having found some inconsistencies in the claimant’s evidence as mentioned above, what is consistent in the claimant’s evidence is that he was on the correct side of the road on approach to the bend in the roadway, and the insured driver was approaching him at least partially on the incorrect side of the road. I accept the claimant’s evidence in this regard as the truth. Accordingly, I consider the insured driver to be wholly at fault for the accident.
COSTS
As a regulated miscellaneous claims assessment matter under Schedule 1 cls (3)(2)(d)&(e) of the Motor Accident Injuries Regulation 2017 (Regulation), legal costs may be awarded.
Schedule 1 cl(3)(1) of the Regulation provides that the maximum costs for legal services provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units.
The current value of a monetary unit is $119.96 which translates to a maximum amount of $1,919 per dispute.
In a letter dated 28 November 2023 the claimant’s legal representative made a claim for “exceptional costs” in accordance with the principles espoused in the case of Moon v AAI Ltd t/as GIO [2022] NSWPIC 516. Whilst not specifically noted in the correspondence, it is assumed that the costs claim is made pursuant to s 8.10(4)(b) of the MAI Act.
It is submitted that the total time engaged including conferences beforeand after the hearing was in excess of three hours. It is submitted that given the nature of the dispute and the significance to the claimant, exceptional circumstances exist to justify payments above the regulated amount. It appears, although not abundantly clear, that the claim amounts to $7,198 plus GST.
I am not satisfied that exceptional circumstances exist in this case. There was nothing about this dispute that took it outside the realm of what could be considered usual or expected circumstances in respect of such a dispute.
I therefore decline to award costs outside the regulated amount. I note that the application involves a dispute under Schedule 1 cl (3)(2)(d), and a further dispute under Schedule 1 cl (3)(2)(e) of the Regulation. I therefore award the maximum regulated amount of $1,919 for both disputes.
CONCLUSION
For the purposes of s 3.11 the motor accident was caused by the fault of another person.
For the purposes of s 3.28 the motor accident was not caused mostly by the fault of the injured person.
Legal costs: costs are awarded in favour of the claimant in the total amount of $3,838 plus GST.
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