Azhari v Insurance Australia Ltd t/as NRMA Insurance
[2023] NSWPIC 550
•12 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Azhari v Insurance Australia Ltd t/as NRMA Insurance [2023] NSWPIC 550 |
| CLAIMANT: | Mostafa Azhari |
| INSURER: | Insurance Australia Limited t/as NRMA |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 12 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims dispute as to whether the claimant is wholly or mostly at fault for the purposes of sections 3.11 and 3.28; collision occurred as claimant entered Woodville Road at Guildford NSW; claimant alleges approaching the intersection indicating to turn left; first lane had no traffic and the second lane had a truck stationary with the driver signalling for him to enter the roadway; after entering the roadway the insured driver has collided with the rear of the claimant’s vehicle; no statement from insured driver; insurer relies on traffic engineer’s report; Held – claimant wholly at fault; evidence of claimant is unreliable and largely consists of a version constructed from hindsight reasoning; however, consistent with the admission that the claimant did not observe the insured’s vehicle prior to impact, and that the truck in lane two had waved the claimant to enter the roadway; the claimant entered the roadway incorrectly assuming that the traffic was clear; his vision was obscured by the truck and he had a duty to ensure that it was safe to enter the roadway and give way to oncoming traffic; claimant failed to keep a proper lookout. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act2017 1. For the purposes of s 3.11 the motor accident was not caused by the fault of another person. 2. For the purposes of s 3.28 the motor accident was caused wholly by the fault of the injured person. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $0. |
STATEMENT OF REASONS
INTRODUCTION
Mr Mostafa Azhari is a 70-year-old male who suffered injury due to a motor accident that occurred on 30 September 2021. The dispute the subject of this determination is whether the claimant is wholly at fault for the purposes of ss 3.11 and 3.28 of the Motor Accident Injuries Act2017 (MAI Act).
After lodging an application for personal injury benefits (claim form) with the insurer, the insurer initially accepted liability for payment of statutory benefits. A number of liability notices were issued thereafter advising the claimant that investigations were continuing.
Eventually, by way of notice dated 7 December 2022, the insurer denied ongoing liability for statutory benefits after 26 weeks on the basis of their determination that the claimant was wholly at fault for the accident.
The claimant requested and internal review on 4 January 2023. The insurer affirmed the original decision.
An Application was subsequently lodged with the Personal Injury Commission (Commission) and the matter has been allocated to me for determination.
I have held a number of teleconferences with the parties and further material has been lodged.
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) and (e) of the MAI Act, disputes relating to ss 3.11 and 3.28 are declared as miscellaneous claims assessment matters for the purpose 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.
CIRCUMSTANCES OF THE ACCIDENT AND SUMMARY OF EVIDENCE
Whilst a number of aspects of the motor accident are the subject of disagreement, it appears uncontroversial that the accident occurred at approximately 9:00am on 30 September 2021 on Woodville Road, Guildford NSW.
Woodville Road consists of three lanes of traffic, travelling in a north/south direction.
The claimant, driving a Hyundai Getz, was stationary at Barbers Road, waiting to turn left onto Woodville Road. The insured driver, driving a Toyota Corolla, was travelling North along Woodville Road.
As the claimant entered Woodville Road, a collision ensued.
Claim form
The claimant provided a description of the accident as follows:
“…I approached the intersection and indicated to turn left onto Woodville Road. The first lane (closest to the kerb) had no ongoing traffic. The second lane (middle) had a truck which had stopped and signalled to give way to me to cross. I checked for oncoming traffic on the first lane and when it was safe, I turned left and merged into the second lane in front of the truck who give way to me. As I had almost completed my left turn, suddenly without any warnings, I heard a loud ‘boom’ and felt immediate impact to my motor vehicle from the back. Another motor vehicle was driving on the third lane failed to keep a proper look out and clipped into my motor vehicle, causing my motor vehicle to be pushed forward and hitting into the motor vehicle in front of me.”
NSW Police report
The report suggests the accident was reported on 7 October 2021. The impact type is described as “side to side”. The description of accident is as follows:
“VEH1 was travelling South along Barbers Road in Guildford, DR1 indicated to turn left onto Woodville Road an unknown driver in a truck used a hand signal to let VEH1 in front. VEH1 made the left turn before colliding with VEH2.
DR1 does not recall any details relating to the accident.
About 12.30PM on Thursday, DR1 attended Auburn Police Station to make a late injury report to police.
DR1 version obtained and uploaded.
VEH1 photos uploaded….
Event to be disseminated to Cumberland PAC for further investigation.”
MJM Corporate Risk Services factual investigation reports dated 16 November 2021 and
25 November 2021
The insurer commissioned the factual investigation. The report reveals that contact was made with the insured owner. A statement was prepared by the investigators from a conversation with her, however, the insured owner subsequently declined to sign the statement or assist on the advice of her work colleagues. Similarly, the insured’s daughter, who was the driver of the vehicle at the relevant time, also declined to assist with inquiries.
On the basis of the above I have not taken into account the draft statement of the insured driver.
Investigators obtained a statement from Constable Eliza Donaldson. The statement is provided in the form of a transcript of interview dated 26 October 2021.
The constable explains that she became aware of the accident through the claimant attending Auburn Police Station approximately seven days after the accident. She did not attend the scene of the accident. She explained that the claimant identified the location of the accident as being Barbers and Woodville Road. When it was pointed out that the accident had been described as being at Henry Street, the constable confirmed that the claimant identified Barbers Road intersection with Woodville Road.
When the constable was asked about the claimant’s version of events, she stated: “He told me, when I was asking him about the accident, that he does not have any memory of it.” However, she does go on to state that the claimant told her that he was indicating to turn left onto Woodville Road, that there was a truck that waved him “to go in front of him. Then he’s taken the corner and he’s collided. Then he said he does not recall any details relating to the accident.”
Whilst the police report makes note of the matter going to Cumberland PAC, Constable Donaldson notes that police came from Cumberland PAC to the scene of the accident, however, no record was made by them. She explains that the accident would not have met the criteria at that point due to lack of injuries. She confirms that from what she can see, no further police inquiries have been made.
Investigators prepared a questionnaire addressed the claimant. The questionnaire was completed, and then returned by the claimant’s legal representatives under cover of letter dated 24 November 2021.
The answers to the questionnaire indicate that the claimant had initially thought the accident had occurred on Henry Street and Woodville Road, however, after checking again he remembers that it actually occurred on Barbers Road and Woodville Road.
In answer to a question as to when the claimant first saw the insured vehicle, he has answered: “I didn’t see the car coming when it hit me.” Later, when asked whether he took any action to avoid the collision, the claimant has answered: “Yes, I believe so but again, I didn’t see the car hitting me.”
The claimant states that he was in the second lane when the insured vehicle collided into the rear of his vehicle. He denies encroaching into lane three. He also states that he is unsure which lane the insured vehicle was travelling in.
When asked if there was a secondary impact, the claimant states that the car at fault pushed his car to “hit the left side.”
Photographs are provided of the claimant’s vehicle. It demonstrates damage over the front panel above and around the driver’s side wheel and the driver’s door. Further photographs reveal damage to the front of the passenger side panel around the front wheel.
A photograph is included of the insured vehicle on the back of a truck. Only the backend is visible and I can not discern any damage to that portion of the vehicle.
A screenshot taken from a phone from “Live Traffic Sydney” includes the following: “OLD GUILDFORD: 1 of 3 southbound lanes is closed on Woodville Rd at Barbers Rd due to a multi vehicle crash. Slow down and take extra care.”
The report attaches a number of property damage insurance documents. A Total Loss Report of Auto and General Insurance Company Ltd, includes the following claim details:
“My sister was driving Woodvale road in the right land and out of nowhere a car came into her lane from the left lane and he hit the front left of the car and went back to his lane and hit another car. As he hit her the car went out the way and hit curb on the right hand side, she came back into her lane and stopped. The damages on the car are the windshield its broken, airbags deployed, there was smoke coming out, the whole front end is damaged, the guard and bumper are broken. The other car has damages on the drivers side…” [sic]
The documents detail damage to the insured vehicle as “heavy front panel and chassis & B LH side damage”.
Statement of the claimant dated 18 March 2023
The claimant explains that he had began his shift as an Uber Eats delivery driver shortly before the accident. He confirms that leading up to the accident he was driving on Barbers Road and came to a stop at the intersection with Woodville Road. He notes that it is a school zone with a speed limit of 40kmph. He also notes that the first two lanes on Woodville Road at that point proceed straight and the third lane turns right. From paragraph 10, he states as follows:
“I recall looking left, then right for oncoming traffic whilst my car was stationary at the Stop sign. I saw the traffic lights on Woodville Road turned red and all the moving cars were slowing down. Traffic was moderate that morning as it was still peak hour. I saw a big truck which came to a stop just about halfway in front of Barbers Road. I saw there were no oncoming traffic on the first lane (closest to the kerb). The truck on the second lane saw the traffic had all come to a stop due to the red light at the intersection, then waved and indicated to me to turn left onto the middle lane in front of him. I checked traffic both directions again and saw that all cars had stopped and it was safe to turn left. I proceeded to turn left onto Woodville Road into the second lane. I recall the speed I was driving was relatively slow due to all traffic stopping from the red light and the school zone limit of 40km/ph.
As I almost completed my turn onto the middle lane, I felt a sudden push to the side of my car on the right side right at the front right wheel, then the impact of the collision caused my car to be pushed forward and collided into the car in front of me (damaging the front left head light). At no point was I rear-ended by the young driver in the Toyota Corolla.”
The claimant states that he does not agree with the insurer’s decision, noting that he was turning into the middle lane and had checked for oncoming traffic before turning. He suggests that the insured driver was speeding because “…had she maintained the speed limit of 40km/ph, the damage of my car would have not been so severe to the point that it was a write off. Further, had she was not speeding, she would have been able to break in a timely manner without colliding into my car.” [sic]
The claimant also suggests there is a possibility that the young driver may have wanted to merge into the middle lane.
A sketch plan is provided as part of the statement which depicts the claimant’s vehicle in lane two in front of a large truck, and the insured’s vehicle merging into lane two from lane three impacting with his front right side, causing the front left hand side of the claimant’s vehicle to impact with a vehicle in lane one.
Report of traffic engineer, Michael Griffiths dated 15 May 2023
This report was obtained by the insurer.
It has been prepared on the assumption that the accident occurred at the intersection of Barbers Road and Woodville Road.
Mr Griffith’s findings are summarised at the beginning of his report as follows:
“It is deduced from the witness and physical evidence that the insured’s car remained in the No. 3 lane.
From the above information and the shape of the pattern of damage to the right side of the right front mudguard it is deduced that the claimant travelled directly across lanes 1 and 2 in the gap between the truck and a car stopped in front of the truck. The pattern of damage is not consistent with the insured entering the Number Two lane after the claimant had completed his turn.
As the claimant entered the intersection the truck would have blocked his view of any vehicles approaching in the third lane.
Claimant MOSTAFA AZHARI then entered the third lane where the left front corner of a vehicle travelling in that lane came into impact with the right side of the right front mudguard of MOSTAFA AZHARI’s vehicle.
The claimant’s vehicle was then deflected leftward back into the second lane where the left side of the left front mudguard of his vehicle came into impact with a vehicle which was stationary in No. 2 Lane.
In part summary, the claimant has entered the roadway and crossed lanes 1 and 2 and entered lane 3 at a time when it is improbable that he had any visibility of approaching traffic in the No. 3 Lane.
Similarly, drivers of vehicles approaching in the No. 3 lane would not have had any visual warning of the approach of MOSTAFA AZHARI’s vehicle.”
Mr Griffiths details his opinion on response time. He considers it unlikely that the claimant was travelling at 40kmph at the time of impact, noting his turning manoeuvre at the time.
Mr Griffiths notes that it is difficult to estimate the insured’s speed, but based on an assumption that traffic was heavy, with the speed zone being 70kmph, he estimates the insured was likely travelling between 40 to 60kmph. Based on the description of the accident, with the position of the truck, it is estimated that the distance of travel that the insured would have had to see the approach of the claimant’s vehicle would likely have been no more than approximately 8m. On this basis, and the estimated speeds, the insured driver would have had less than a second response time.
The report also includes a comprehensive summary and opinion as to biomedical matters. This content is largely outside of the matters relevant to my determination.
SUBMISSIONS
Submissions lodged by the claimant with the Application
Rather curiously, the submissions state that the accident occurred at the intersection of Henry Street and Woodville Road. The submissions refer to the factual investigation evidencing that a truck was stopped in lane two of three and directed the claimant to access Woodville Road into lane two in front of his truck. It is submitted: “the claimant submits that consideration should be undertaken in relation to factual report as evidence that he was directed by the truck which interfered with the claimants ability to see clearly before turning.” [sic]
Insurer’s submissions dated 15 February 2023
The insurer sets out the background of the dispute and summarises the evidence. The insurer notes that the claimant did not see the insured vehicle prior to the impact.
It is submitted that there is a duty on all road users to take reasonable care while using the road. The insurer submits that the damage to the claimant’s vehicle is consistent with the claimant’s vehicle being at an angle abutting into the third lane where the impact with the insured vehicle occurred.
The insurer submits that the insured would have had an “extremely limited” timeframe to react when the claimant’s vehicle encroached into lane three. As such, I would be satisfied that a reasonable person in the position of the insured driver would have had insufficient time to take any steps to avoid the collision.
The insurer refers to the case of Dungan v Chan [2013] NSWCA 182, where the Court of Appeal at 15 found:
“A driver is entitled to assume that others will observe the rules of the road…as a general rule a person is entitled to assume that others will act in a non-negligent manner. However, where negligence is the issue the real question is, whether in all the circumstances, the person charged with negligence exercised a degree of care that those circumstances required…”
The insurer submits that the claimant caused the dangerous situation by making a turn across traffic when it was unsafe to do so. As such, the claimant is wholly at fault for the accident.
FINDINGS AND REASONS
There is some controversy as to the location of the accident. Both sets of submissions appear to have been prepared on the assumption that the accident occurred at the intersection of Henry Street and Woodville Road. However, having considered all of the evidence I am sufficiently satisfied that the accident occurred at the intersection of Barbers Road and Woodville Road. This is the location the claimant provided to the NSW Police, and he clearly explains in his statement that he realised after lodging his claim form that he had incorrectly referred to the accident occurring at the intersection with Henry Street.
In any event, on the basis of the photographs of each intersection contained within the factual investigation reports, the essential issues in dispute are not significantly affected by the controversy, as under both assumptions it is clear the claimant was turning left into Woodville Street.
Having considered the totality of the evidence before me, I do not consider the claimant’s description of the accident as contained in his written statement of 18 March 2023 to accurately reflect the most likely circumstances surrounding the accident.
In this regard, the statement is contradictory to versions of events the claimant provided at earlier points of time.
Whilst the statement is quite specific about the impact being felt to the side of his car, his claim form contains a description of being hit at the back.
The claimant also told police on 7 October 2021 (being the first recorded version of events from the claimant) that he had no recollection of the accident, although he does provide the detail that he was turning left and a driver in a stationary truck had waved him to enter.
Accordingly, I consider the claimant’s description contained in his statement of March 2023 to largely consist of a version constructed from hindsight reasoning rather than representing a true reflection of his direct recollection of events.
What is consistent throughout all of the evidence, is the claimant’s admission that he did not see the insured’s vehicle prior to impact. It is also consistently reported that a truck was stationary in lane two, and the driver had waved him through.
I have considered the opinion of Michael Griffiths and based upon the evidence, including the photographs and my findings above, and make a finding that on the balance of probabilities, the claimant has entered lane three of Woodville Road, incorrectly assuming that the traffic was clear on the basis of the indication from the truck driver. In doing so, the claimant has entered the path of travel of the insured driver.
Given the presence of the truck, I find that the claimant was not able to view the oncoming insured vehicle, and vice versa.
The claimant was entering in Woodville Road from a cross street. As such, he had a duty to ensure that it is safe to enter the roadway and give way to oncoming traffic.
The fact that the claimant acknowledges that he did not see the insured vehicle is evidence that he failed to keep a proper lookout. Whilst I have found that the insured vehicle would not have been visible immediately prior to and during the turning manoeuvre, due to the presence of the truck in lane two, I find that a reasonable person in the position of the claimant would not have entered the roadway, specifically lane three, when the visibility of oncoming traffic was obscured.
As such, I find that the claimant failed to keep a proper lookout and proceeded onto the roadway, when it was unsafe to do so, and failed to give way to oncoming traffic.
I also make a finding, that on the basis that the claimant’s vehicle would have been obscured on approach by the truck, and accepting the uncontested evidence of Michael Griffiths, the insured driver would not have had an opportunity to take reasonable action to avoid the accident.
It follows, therefore, that I find the claimant to be wholly at fault for the subject motor accident.
COSTS
As a regulated miscellaneous claims assessment matter under Schedule 1, cls (3)(2)(d) and (e) of the Motor Accident Injuries Regulation 2017, 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.
I am not precluded from awarding costs in favour of the claimant merely on the basis that I have found against him. However, I do not consider that on the evidence that there was a reasonable basis for the legal representatives of the claimant to have pursued this dispute. Accordingly, I decline to award costs in favour of the claimant.
CONCLUSION
For the purposes of s 3.11 the motor accident was not caused by the fault of another person.
For the purposes of s 3.28 the motor accident was caused wholly by the fault of the injured person.
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $0.
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