Baker v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPIC 46
•23 January 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Baker v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 46 |
| CLAIMANT: | Diane Baker |
| INSURER: | NRMA |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 23 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant; section 3.28; where the claimant’s evidence was that she was struck on the left passenger side of her vehicle by the insured vehicle travelling behind her in the same direction while making a left-hand-hand turn into a driveway entrance; where the insured driver’s evidence was that the claimant’s vehicle made a right-hand turn in front of the insured driver’s vehicle from the opposite direction; conflicting evidence clarified by oral evidence of the claimant and the insured driver at assessment conference; Held – claimant not wholly or mostly at fault. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act2017 The finding of the assessment of this dispute is as follows: 1. For the purposes of s 3.28 the motor accident was not caused wholly or mostly by the fault of the claimant. |
STATEMENT OF REASONS
INTRODUCTION
These proceedings concern a Miscellaneous Claim assessment under Schedule 2, cl (3)(e) of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant, Diane Baker, seeks a review of the insurer’s decision made under s 3.28 of the MAI Act to the effect that the claimant was wholly or mostly at fault for the motor accident.
BACKGROUND
The claimant is a 77-year-old woman who suffered injuries in a motor accident on 3 March 2023 on Medowie Road, Medowie, when there was a collision between the passenger side of the vehicle she was driving and the right front-end corner and driver’s side of the insured vehicle,
The claimant and the insured driver have provided conflicting versions about how the collision occurred, as will become apparent later in these reasons when the evidence is addressed.
On 3 May 2023, the claimant made an application (received by the insurer on 9 May 2023) for payment of statutory benefits. Specifically, she sought payment of benefits for treatment and care.
On 9 August 2023, the insurer notified the claimant that it declined liability for payment of those benefits after 26 weeks, on the basis that she was wholly at fault for the accident.
On 10 August 2023, the claimant sought an internal review of the insurer’s decision. On 29 August 2023, the insurer issued a determination, affirming its original decision.
On 15 September 2023, the claimant commenced these proceedings in the Personal Injury Commission (the Commission) to resolve the dispute.
The proceedings are now before me for determination.
ASSESSMENT CONFERENCE
I conducted the proceedings by way of an assessment conference hearing on 13 December 2023. The claimant, the claimant’s support person, Mr Matthew Hanlon and Ms Vicki Zogopoulos attended the hearing via audio-visual link. The insured driver, Ms Sandra Dennison attended by telephone. Both the claimant and Ms Dennison gave oral evidence.
EVIDENCE
I have considered the following documentary evidence:
(a)the claimant’s bundle of documents filed on 15 September 2023 (82 pages).
(b)The insurer’s bundle of documents filed on 6 October 2023 (108 pages).
(c)The insurer’s property damage file, filed on 17 October 2023, in response to my directions (41 pages).
(d)The claimant’s further statement filed on 26 October 2023, in response to my directions (5 pages).
The claimant’s evidence
In her application for personal injury benefits dated 3 May 2023, the claimant described the circumstances of the accident in the following terms:
“I was driving on Medowie Rd I put my blinker on to turn left into Ivy Farm when I was hit on passengers (sic) side wiped my car out.”
The claimant provided a signed statement dated 30 May 2023, to the insurer’s investigators. Her evidence in that statement may be summarised as follows:
(a) the accident occurred on Medowie Road at the turn into Ivy Farm at about 12.30pm. She was travelling there to buy tomatoes. She “had been there multiple times” and she is quite familiar with the area.
(b) She was driving a 2021 Mazda 2 Hatchback, silver in colour. [1]
(c) She had slowed down to make the turn into the driveway of the farm because it was quite a tight turn and it had ditches on both sides. She had her left indicator on.
(d) At the point of impact, she was either stopped or very close to stopping.
(e) The claimant described the insured vehicle as a “four-wheel drive” with a “large bull bar on the front”. It was “white or a light colour of some sort.”
(f) She did not see the insured vehicle prior to impact, but afterwards she knew that it had come from behind her. She did not hear the sound of a horn.
(g) After the collision, she pulled in (the driveway of the farm) and the insured driver stopped on the road.
(h) The claimant said it was a heavy impact because her car was eventually written off. She observed that there was not much damage to the insured vehicle “due to the bull bar”.
(i) After the collision, she exchanged details with the insured driver who she identified to be Sandra Dennison. The claimant said that she was told by the insured driver that she could not go past the claimant because there was a car coming the other way.
[1] Looking at the photographs provided in the insurer’s bundle, the claimant was driving a recent model Mazda 2 sedan (not a Kia Serrato as recorded by the insurer’s investigators).
The claimant filed a further signed statement dated 20 October 2023, with the Commission. That evidence may be relevantly summarised as follows:
(a) she had travelled to Ivy Farm at 637 Medowie Road Medowie for a period of about 20 years.
(b) She lives in Rutherford, and she travels exactly the same route to the farm from her home. She has always approached the farm from the south travelling in a northerly direction on Medowie Road.
The claimant gave oral evidence at the assessment conference. That evidence may be summarised as follows:
(a) she said that the speed limit was 80kmph on Medowie Road on approach to Ivy Farm on the day of the accident.
(b) She had slowed down to about 15-20kmph when she put her left blinker on to turn into the driveway of Ivy Farm on her left.
(c) She said that there were two lanes on Medowie Road in her direction of travel in front of or near the driveway entrance into Ivy Farm. The left lane is for travelling straight ahead and the right lane is a turning lane into Brocklesbury Road. She believed that there was one lane of travel in the opposite direction.
(d) She had slowed down and started turning left into the driveway of Ivy Farm when the crash happened. Her car was already sideways towards the driveway of the farm when all of a sudden, she heard a “bang”.
(e) After the crash, she moved her car a bit further into Ivy Farm. She then telephoned her insurance company to inform them of what happened.
(f) She got out of her car. The insured driver did not approach her. She walked towards the insured driver. The insured driver moved her vehicle to the side of the road because a passing cyclist had told her to move it off the road.
(g) She said to the insured driver: “Oh God, what has happened? I cannot believe that I was hit.” She said that the insured driver said nothing in reply. The insured driver handed her a piece of paper with the insured driver’s name and telephone number on it. She then gave her name and phone number to the insured driver.
(h) The claimant corrected paragraph 43 of her statement of 30 May 2023. She did not say to the insurance investigator that the insured driver “told me that she couldn’t go past me on the right side because there was a car coming the other way.” Her evidence is that at the time of the accident, she saw another vehicle coming the other way before she made her left hand turn and it was her belief that the insured driver had to divert to the left side to avoid a head-on collision with the oncoming vehicle on the right side.
(i) The claimant was shown photographs of the insured driver’s vehicle. She conceded that there does not appear to be a bull bar at the front of that vehicle but she said she thought it looked like a bull bar at the time of the accident.
The insured driver’s evidence
The insured driver provided a signed statement to the insurer’s investigators, dated 2 June 2023. That evidence may be summarised as follows:
(a) she was 71 years of age (at the time of the accident) and she lives in Medowie.
(b) She was driving a 2015 model Mitsubishi ASX (a compact SUV). She was on her way home from Raymond Terrace travelling in a northerly direction along Medowie Road.
(c) She has lived and worked in the area for many years.
(d) She said at the time of the accident, there was a vehicle turning right into Brocklesbury Road in front of her. The speed limit was 80kmph and she was travelling at 60 to 70kmph prior to the collision. There is a gravel entry to a market garden almost directly across from Brocklesbury Road on her left. Suddenly, she observed a small white passenger vehicle turning from the southbound lane on Medowie Road, into the market garden.
(e) She was about two to three car lengths away from the white vehicle when it started turning. She attempted to pull to the left and also braked heavily but was not able to avoid the impact. She cannot recall whether the white vehicle had its indicator on.
(f) The front driver’s corner of her vehicle impacted with the passenger side of the white vehicle and her vehicle ended up half on and half off the road. The white vehicle “ended up the gravel drive a bit.”
(g) After the accident, she gave the claimant a piece of paper to record details (of the accident).
(h) The insured driver said that there “was no need to call police as there were no injuries and only minor damage, that was not a topic of discussion”.
(i) The insured driver said “I recall she did accuse me of being at fault because she said that she had her blinker on, I don’t know whether that was the case…”
The insured driver gave oral evidence at the assessment conference. That evidence may be summarised as follows:
(a) she had been to the gym at Raymond Terrace and was driving back to her home in a northerly direction along Medowie Road when the accident happened.
(b) The accident happened about 11.00am.
(c) At the location where the accident occurred, there were two lanes of travel in her direction of travel: a general lane in which she was travelling in and a right-turning lane to her right into Brocklesbury Road.
(d) At the time the accident occurred, there was a car in the right-turn lane towards Brocklesbury Road. She cannot recall whether there were any cars coming down in the opposite direction.
(e) When asked whether she was aware that there was a market farm on her left called “Ivy Farm” at the location of the accident, she said she was not. The only market farm that she was aware of is the “Tin Shed”.
(f) When asked whether she saw the sign “the Tin Shed” to her left at the time of the collision, the insured driver said: “No, I did not. I was not looking around. I was driving the car.”
(g) The insured driver said that the collision occurred when the little white car “just came across in front of me.” She put the brakes on to try and avoid the collision.
(h) After the accident, she pulled up towards the left and the white car continued about 15 metres up the gravel road and stopped.
(i) The insured driver was asked on several occasions to clarify how the little white car could have made a right-hand turn from the opposite direction when there was a car travelling in the right-hand turn lane to her right, the insured driver’s responses were as follows:
“I couldn’t see beyond the car turning right. The little white car just kept travelling forward”;
“It came across in front of me. All that I can remember. That was nine months ago”;
“All I know is that she pulled up in front of me and I hit her” and,
“She just ended up in front of me.”
(j) When asked whether she had passed the intersection of Brocklesbury Road at the time of the accident, the insured driver said:
“I can’t recollect. It was just where it was, I don’t know. The car, a white car was on my right and I collided with it.”
(k) When asked later by Mr Hanlon whether there was a chance that she did not see the white car turning left into Ivy Farm, the insured driver said:
“All I know was that she came in front of me, I don’t know where she was.”
(l) When asked by Hanlon whether she was unclear about the white car turning left in front of her, the insured driver said:
“All I know is that I was driving down the road and she pulled in front of me”.
THE INSURER’S SUBMISSIONS
The insurer made written submissions to the Commission prior to the assessment hearing.
The insurer says that the claimant’s version of events differs to that of the insured driver. The insurer’s position is that the damage to both vehicles is consistent with the insured driver’s version in that the claimant attempted to conduct an illegal right-hand turn into Ivy Farm from the southerly direction of the road, ultimately causing the collision.
The insurer submits that the claimant failed to keep a proper lookout, failed to give way, crossed an unbroken line in an attempt to turn into Ivy Farm, and caused the collision with the insured driver’s vehicle.
After the claimant and the insured driver had given their oral evidence, I invited Ms Zogopoulos to make oral submissions. Ms Zogopoulos indicated that she did not have any further submissions.
CONSIDERATION
The relevant legislation and legal principles
Part 3 of the MAI Act is concerned with the entitlement to statutory benefits and the circumstances in which they are payable in respect of death or injury resulting from a motor accident.
Section 3.1 of the MAI Act provides that the claimant as an injured person is entitled to payment of statutory benefits regardless of whether he was at fault in the motor accident.
On that basis, the claimant received payment of statutory benefits payments for treatment expenses from the insurer for a period of 26 weeks.
At the end of that period, in reliance on s 3.28 of the MAI Act, the insurer ceased paying those benefits.
Section 3.28 (1)(a) of the MAI Act provides an injured person is not entitled to statutory benefits for treatment and care expenses incurred more than 26 weeks after the motor accident if the accident was caused wholly or mostly by the fault of the injured person.[2]
[2] For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks by the Motor Accident Injuries Amendment Act 2022.
Section 3.28 (2) provides that 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 was greater than 61%.
In this case, the insurer’s decision was made pursuant to s 3.28 of the MAI Act to the effect that the claimant was wholly at fault in the motor accident.
Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
In s 5 of the Civil Liability Act 2002 (Civil Liability Act), negligence is defined as meaning failure to exercise reasonable care and skill.
Pursuant to s 3B(2)(a) of the Civil Liability Act, Divisions 1-4 and 8 of Part 1A (Negligence) apply to motor accidents.
For the purpose of assessing breach of duty of care, s 5B(1) of the Civil Liability Act provides that a person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
Section 5B(2) provides that in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, and (d) the social utility of the activity that creates the risk of harm.
Legal principles – driver’s duty of care
The principles concerning the duty of care a driver owes to other road users, and relevant to breach of duty by reference to s 5B of the Civil Liability Act, were summarised by Meagher JA (Macfarlan and Emmett JJA agreeing) in Marien v Gardiner [2013] NSWCA 396 as follows (omitting citations):
"[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one….
[34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users…. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).
[35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident… The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], 'reasonable attention to all that is happening on and near the roadway that may present a source of danger'. That in turn requires 'simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path'.
[36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
[37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the 'limits of visibility and control' so as to be able to react to whatever ventures into the vehicle's path… Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision."
(Emphasis added)
Discussion
The claimant gave consistent evidence in her personal injury claim form, her two statements and oral evidence about the circumstances of how the collision occurred. She was travelling in a northerly direction along Medowie Road upon her approach to the driveway entrance to Ivy Farm at 637 Medowie Road. She knew she was travelling in an 80km zone. She knew she had to make a sharp left hand turn into that driveway as she had done it many times in the past. She slowed down to about 15 to 20kmph and activated her left indicator to make the left turn. The left turn into Ivy Farm was before the intersection of Medowie Road and Brocklesbury Road to the right. There were two lanes of travel in her direction, the right lane being a dedicated right-hand turn lane into Brocklesbury Road.
While the claimant’s observation that the insured vehicle had a “large bull bar on the front” has proved to be inaccurate, this inconsistency in her evidence is immaterial to the issue of who was at fault in this accident. I otherwise accept the claimant’s evidence.
In her statement of 2 June 2023, the insured driver said she was travelling in a northerly direction along Medowie Road at a speed of about 60-70kmph in an 80kmph zone. I accept that evidence.
The insured driver said that at the location where the accident occurred on Medowie Road, there were two lanes of traffic in her direction of travel in a northerly direction. She was travelling in the general lane and on her right, there was a dedicated right-hand turn lane into Brocklesbury Road. At the time of the accident, there was a car travelling in the right-hand lane towards the intersection with Brocklesbury Road. I accept that evidence.
In her statement of 2 June 2023, the insured driver said that the accident occurred at the driveway entrance of the “Tin Shed” market farm, which was on her left, when the claimant’s white car made a right-hand turn in front of her vehicle, into the farm, from the southbound lane. I do not accept that evidence for the reasons that follow.
The insured driver said that at the time the accident occurred, there was a car turning right in the right-hand turn lane towards Brocklesbury Road. In oral evidence, the insured driver was asked to clarify how would it be possible for the claimant to make a right-hand turn into her path of travel from the southbound lane when at that material time, there was a car travelling in the right-hand lane to her right.
In her various responses, the insured driver said that she “could not see beyond the car turning right”, the claimant’s car “just kept travelling forward”, the claimant’s car “came across in front of me”, the claimant’s car “just pulled up in front of me” and “she just ended up in front of me”. The insured driver did not in any of those responses confirm that the claimant made a “right-hand turn” in front of her vehicle.
Given the insured driver’s own evidence that there was a vehicle present in the right-hand turn lane on her right at the time the accident occurred, I do not accept the insured driver’s evidence in her statement of 2 June 2023 that claimant made a right-hand turn into her path of travel from the southbound lane. In my view, the various responses given by the insured driver suggest that as a road user, she was not paying attention to her surroundings while driving, in particular she was not paying attention to what was in front of her. She therefore did not see the claimant’s car turning left into a driveway entrance, until it was too late to avoid the collision with the left side of the claimant’s car.
It is also apparent that as a result of her inattention, the insured driver was also mistaken as to the location of the accident. She gave evidence that there were two lanes of travel in her direction at the time of the accident and that the accident occurred before the intersection of Brocklesbury Road. According to the photographic schedule of the insurance investigators, the “Tin Shed” market farm is about 10 metres past the intersection of Brocklesbury Road and the right-hand lane ends at that intersection. There is only one lane of travel in front of the Tin Shed in a northerly direction.[3] It is the entrance to the Ivy Farm that is stated to be located about 40 metres before the intersection of Brocklesbury Road and where there are two lanes of traffic in a northerly direction.[4]
[3] See Photographic Schedule – pp 71-85 of the insurer’s bundle.
[4] Insurer’s bundle.
The sketch diagram of the collision drawn by the insured driver on 2 June 2023 also appears more consistent with the location of the accident being identified as the entrance of Ivy Farm before the intersection of Brocklesbury Road and with the claimant making a left-hand turn into that entrance.
For all the above reasons, I make the following findings:
(a) the claimant was travelling in a northerly direction along Medowie Road upon her approach to the driveway entrance to Ivy Farm at 637 Medowie Road.
(b) The speed limit on that section of Medowie Road was 80kmph.
(c) On approach to the driveway entrance to Ivy Farm, the claimant slowed down to about 15 to 20kmph and activated her left indicator to make a left turn into the driveway.
(d) The left turn into Ivy Farm was about 40 metres before the intersection of Medowie Road and Brocklesbury Road to the right.
(e) There were two lanes of travel in a northerly direction directly in front of the driveway entrance into Ivy Farm, the right lane being a dedicated right-hand turn lane into Brocklesbury Road.
(f) About the time that the claimant started to make a left-hand turn into the driveway entrance to Ivy Farm, the insured driver was travelling behind her in a northerly direction along Medowie Road at a speed of about 60-70kmph.
(g) When the claimant was making her left-hand turn, the insured driver was about two to three car lengths behind her when the insured driver first saw the claimant’s vehicle sideways towards the driveway entrance to Ivy Farm.
(h) The insured driver braked heavily and veered towards her left and the front driver’s corner of her vehicle collided with most of the length of the passenger side of the claimant’s vehicle.
In Manley v Alexander [2005] HCA 79 at [11]‑[12], the plurality Gummow, Kirby and Hayne JJ stated the duty of riders and drivers on public roads as follows:
“…driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle’s path…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.”
In these circumstances, I find that the insured driver breached her duty of care to the claimant as a road user. She failed to pay reasonable attention to the movements of the claimant’s vehicle. She failed to heed the claimant’s left indicator. She failed to exercise reasonable care in the face of these events in not controlling her speed by slowing down to avoid the collision.
It follows that for the purposes of s 3.28 of the MAI Act, the claimant was not wholly or mostly at fault for the motor accident.
COSTS
As the claimant was self-represented in these proceedings, the question of costs does not arise.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
(a) for the purposes of s 3.28 of the MAI Act, the motor accident was not caused by the fault of the claimant.
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