Bamblett v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bamblett v Allianz Australia Insurance Limited [2024] NSWPIC 402
CLAIMANT:	Jay Bamblett
INSURER:	Allianz
MEMBER:	Hugh Macken
DATE OF DECISION:	26 July 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; Personal Injury Commission Rules 2021; miscellaneous claim; whether claimant wholly or mostly at fault; contributory negligence; failing to give way; conflicting versions of events; line of vision; traffic control lights; making right hand turn with safety; Held – motor accident not caused wholly or mostly by the fault of the claimant; 50% contributory negligence.
DETERMINATIONS MADE:	CERTIFICATE Miscellaneous Claim made which is a reviewable decision under Schedule 2 (3) 6.13 (3) of the Motor Accident Injuries Act 2017 and a Miscellaneous Claim made pursuant to Schedule 2 cl 3 (e) of the Personal Injury Commission Rules 2021, a dispute concerning whether the person is wholly or mostly at fault. The findings of the assessment of this dispute are as follows: 1. For the purposes of section 3.11 I find that the motor accident was not caused wholly or mostly by the fault of the claimant. 2. I find the claimant to be contributory negligent in respect of this matter in the amount of 50%.

STATEMENT OF REASONS

INTRODUCTION

Jay Bamblett (the claimant) is a 35-year-old man who was injured in an accident on 30 November 2023. Following the accident the claimant lodged an application for Personal Injury Benefits alleging negligence against the insured vehicle. After investigating the claim, the insurer admitted breach of duty of care on behalf of the insured but determined that the claimant was 80% contributory negligent. The claimant sought a review of this decision. In a Certificate of Determination dated 28 March 2024 the insurer confirmed its original determination. Thereafter the claimant lodged a Miscellaneous Claim for Assessment in respect to whether or not the injured person was wholly at fault.
A teleconference was conducted in this matter on 15 May 2024 at which time it was determined that the matter ought to be the subject of an assessment noting the conflicting versions of events between the claimant and the insured in respect to the circumstances of the accident.
An assessment conference was conducted on 10.00am on 3 July 2024 at 1 Oxford Street, Sydney, level 20. The claimant was self-represented. The insurer was represented by Ms Frances Allen. The parties tended statements and material which was relied upon at the assessment conference. The claimant was the only witnessed caused to give evidence in the matter. With the consent of both parties’ additional evidence being a video tape made by the claimant of the scene of the accident and the route taken by the insured driver on the day of the accident was viewed at the assessment conference.

DOCUMENTS CONSIDERED

All documents, including late documents from both parties, were considered at the assessment conference with the footage of the scene relied upon by the claimant.

THE ACCIDENT

The claimant was riding his motorcycle on Bridges Road New Lampton at about 3.30pm on 30 November 2023. The weather was fine the road surface was dry. As the claimant approached the intersection of Bridges Road and Sketchley Parade, a Mazda CX6 being driven by Adam Boyle, which was in front of the claimant’s motorcycle, applied the brakes so as to come to a stop as the traffic control signal facing him had turned from green to orange. At this time the claimant, fearful that he would be unable to stop in time, checked to see that the lane to his left was clear, seeing that it was, proceeded to move into the left-hand lane to ride through the traffic lights at the intersection. The claimant states, and I accept, that he was going to travel through the intersection whilst the traffic control signal facing him was orange.
Unknown to the claimant at that time, Aydan Eyles (the insured) was at the traffic lights at the intersection and was intending to turn across the path of the claimant. That is to make a right-hand turn from bridges road to Sketchley Parade.
At the assessment conference a significant question arose at to the position of the insured vehicle at the time in which the traffic control signal which he was facing turned from green to orange. At the assessment conference it was noted that one of the insurers submissions was that their insured had moved into the intersection when the light was green and accordingly, he was obliged to complete the right hand turn as they would otherwise be blocking the intersection from traffic crossing into Bridges Road from Sketchley Parade. This was a key fact seemingly based on the insured statement that in answer to the question “And you said you waited. There was no green arrow” replied “yeah. So, I was waiting in the intersection waiting for it to turn red.” He goes on to say, “then once it turned red, I veered right.” In answer to the question so, you proceeded into the intersection he responded “yeah.” In answer to the question to turn right? he responded “yeah.”
The issue as to the position of the insured driver at the intersection is important as the insurers allegation of contributory negligence is based on the determination of the relative culpability of the parties. And that is that the insured was already in the intersection before moving off and accordingly had no option other than to move once the vehicle in front of him (Mazda CX6) came to a stop. That said I do not consider that the insurer has definitely stated that they were actually across the line of the intersection and obligated to complete the turn to the right. The statement of Adam Boyle, the driver of the Mazda CX6 waiting at the traffic lights, makes clear that the insured driver had not moved into the intersection prior to commencing to make the turn. That is in answer to the question, and do you think that vehicle had moved into the intersection prior to making that turn? He replied “I didn’t notice that. I don’t think so.”
This evidence is corroborated by the pedestrian, Jason Kemp, who also provided a statement in this matter. In answer to the question in relation to the insured’s vehicle, had to come to a complete stop at that intersection prior to making the turn?” he responded, “yes he was waiting.” In answer to the question had the vehicle proceeded into the intersection as they were waiting or was it waiting behind the line? He replied, “ah was waiting behind the line.”
I accept the claimant’s submission that the insured driver was facing an orange light, stationary behind the line of the intersection, prior to making a right hand turn across the path of the claimant’s motorcycle.
The position of the Mazda CX6 being driven by Adam Boyle had the effect of preventing the insured driver from seeing the driver’s motorcycle and from the claimant, on his motorcycle, seeing the insured driver. That is the claimant, having moved to the lefthand side of Mr Boyles vehicle so as to proceed through the intersection, meant, that once he checked to see the left-hand lane was clear, he would be unable to see, a vehicle making a right hand turn across his path as the Mazda was between him and that vehicle. Indeed, it was not until he entered the intersection, and saw the insured’s vehicle, that he attempted evasive action by moving to the right to get behind the insured vehicle. In doing so, and given that such a manoeuvre was required, he was unable to stay upright and thereafter his bike went over and he suffered the injuries he sustained.
In my view it was open to the insured driver to stay stationary at the traffic lights given that he was behind the line, was facing an orange light with a vehicle moving towards him which was slowing down at the traffic lights, and he was unable to see clearly whether or not a motorcycle, such as the claimant was riding, was in the left-hand lane approaching the intersection. The relative culpability of the insured driver and given that he was attempting to make a right-hand turn facing an indeed orange light is, in my view is equal to any culpability on behalf of the claimant.
I note the insurer has admitted brief of duty of care on behalf of its insured and seeks to raise an allegation of contributory negligence on part of the claimant primarily on the basis that the claimant, when faced with a choice as to whether or not to stop at an orange light, as the vehicle in front has done so, chose to execute what they contend was a dangerous manoeuvre by moving into the left hand lane so as to proceed into the intersection. There is merit in this submission. The claimant stated at the assessment conference that he was unable to stop given and noting the speed in which he was travelling. Accordingly, he chose to change into the left-hand lane and continue through the intersection. He may well have been able to change into the left-hand lane and stop at the intersection lights but chose to drove through it in circumstances where he was ‘blind sighted’ to any vehicle which was turning right across his path. I accept that the claimant put himself in a position of danger by riding his motorcycle through the intersection in such a manner.
It was open to the claimant to move through the intersection in accordance with an orange light. It was open to the insured driver to move through the intersection in accordance with an orange light. Neither the claimant nor the insurer was in a position where they could be certain that the intersection would be clear so as to move, on the claimant’s part straight ahead through the intersection and on the insured driver’s part to execute a right-hand turn through the intersection. There is no material to show that the claimant was speeding. There is no material to show that the insured driver was driving contrary to a traffic control signal.
Noting this, and particularly noting that the insured driver had the option of not moving through the intersection at all once the light went from green to orange and he was stationary at the intersection I do not find that the claimant was wholly or mostly at fault. That said the claimant was driving in a manner that would put him at some risk noting that the speed he approached the intersection did not allow him to stop safely behind the vehicle in front of him. Further he elected to proceed through an intersection when he was unsure as to whether or not it was clear. He could not see the whole of the intersection because he was moving from right to left behind and beside the vehicle which had been in front of him, and which was becoming stationary at the intersection.
I note the claimant is unrepresented and accordingly no determination in respect to legal costs is required in this matter.

CONCLUSION

My determination of the Miscellaneous Claim is as follows:
For the purpose of s 3.11 of the Motor Accidents Injury Act 2017 the motor vehicle accident was not caused wholly or mostly by the claimant.
As requested by the parties in all the circumstances I find the claimant to be 50% contributory negligent in respect to all the circumstances to the accident.

LEGISLATION

In making my decision I have considered the following legislation and guidelines:
· Motor Accidents Injury Act 2017 (NSW), and
· Motor Accident Injuries Regulation 2017 of the Act.

[2024] NSWPIC 402

26 July 2024