Blanda v QBE Insurance (Australia) Limited
[2023] NSWPIC 395
•8 August 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Blanda v QBE Insurance (Australia) Limited [2023] NSWPIC 395 |
| CLAIMANT: | Grace Blanda |
| INSURER: | QBE |
| MEMBER: | Bridie Nolan |
| DATE OF DECISION: | 8 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether motor accident was caused by the fault of another person or of the injured person; determination on the papers; evidentiary burden borne by insurer; standard of proving the evidentiary onus an “actual persuasion”; differing and irreconcilable eyewitnesses’ accounts; expert evidence relied upon without proven basis; Held – the Commission not able to reach requisite state of satisfaction upon unchallenged evidence; insurer’s evidentiary burden not discharged. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 (the Act) 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 or s 3.36 the motor accident was not caused mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 27 July 2022. 4. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $3,500 inclusive of GST. |
STATEMENT OF REASONS
INTRODUCTION
There is a miscellaneous claim assessment dispute under Schedule 2 (3) (e) of the Motor Accident Injuries Act 2017 (the Act) concerning whether the motor vehicle accident was caused wholly or mostly by the fault of the claimant. The insurer accepts that the insured driver breached the duty of care to the claimant. The relevant controversy is to what extent, if any, the claimant was at fault for the accident.
Background
The claimant was involved in a motor vehicle accident on 27 July 2022 at 3:15 pm at the intersection of Chuter Avenue and Ramsgate Rd, Ramsgate. She reported the accident to police on 29 August 2022 at 11:10 am.
The intersection is a 4-way intersection controlled by traffic lights. The northern and southern approaches to the intersection both consist of 2 lanes of traffic for each direction of travel. There is no dedicated right turn lane for traffic wishing to turn right from Chuter Avenue onto Ramsgate Road.
[IMAGE UNABLE TO RENDER]
Evidence
In her application for personal injury benefits the claimant provided the following account:
“I was in the left lane, heading north (straight) on Chuter Avenue, Ramsgate Beach, the truck driver was heading south in the opposite direction, when the truck driver sped up to the lights and turned right onto Ramsgate Road whilst I was halfway through the intersection, collecting the front left of my vehicle, causing the vehicle to be written off. I tried to avoid a head on collision or the truck hitting me on my drivers [sic] side, so I steered to the right where he collected me on the front left.”
A photograph of the damage to the claimant’s vehicle is depicted in the following photograph.
[IMAGE UNABLE TO RENDER]
The insured driver in a statement dated 9 November 2022 said relevantly:
“I recall on the day of the accident I was travelling south on Chuter Ave and reached the first car in the right lane, lane 2 of 2, at the traffic light intersection of Ramsgate Road stopped to make a right turn. I had my right indicator on.
I was stationary for about 5 seconds and no cars ahead of me. There were cars in the right lane, lane 2 of 2, also on Chuter Ave wanting to make a right turn into Ramsgate Road in the opposite direction to me.
These cars included the first car at the lights waiting to turn right in the opposite direction, then the Claimant behind this vehicle, and a third car behind the Claimant car. I had a clear view of all these cars stationary at the lights. I looked and did not see any cars heading into the intersection south bound on Chuter Ave in lane 1 so when I received a green arrow I moved out into the intersection to make my right turn.
As I entered Ramsgate Road I noticed there was a bank up of traffic ahead so I had to stop my truck with the rear end still slightly out into Chuter Ave, no more than a ½ a meter and was stopped in this position for about 30 seconds to a minute before felt, but did not see, the Claimant [sic] vehicle collide with my rear passenger corner of the metal step on the rear of my truck.”
The damage to the insured vehicle is depicted in the following photograph.
[IMAGE UNABLE TO RENDER]
Eyewitness to the accident, Valentina Petrovski, provided a statement to Brooksight Investigations in which she said relevantly:
“I recall on the day of the accident I was travelling north on Chuter Ave and came to a stop at a red light in lane 2 of 2 with the Claimant vehicle ahead of me and one other car first at the red light.
There were no cars in lane 1 to our left.
The lights turned green and the car at the front put its right indicator on to make a right turn, so we were now stuck behind this vehicle. I wanted to travel straight.
I then saw the truck involved travelling in the opposite direction it began to make a right turn into Ramsgate Road and it was well and truly into Ramsgate Road and had begun to straighten into Ramsgate Road when the Claimant merged out into lane 1 of Chuter Ave and began to travel straight moving out and around the car ahead.
The truck had already begun its right turn before the Claimant moved out into lane 1.
I followed the Claimant out and merged myself out into lane 1 and this is when I watched the Claimant just continue straight and she just drove straight into the rear passenger side of the truck. I thought to myself that this lady has hit the truck on purpose.
The Claimant went from a stationary position to move forwards and colliding with the truck at low speed and had only travelled about 10m before hitting the truck.
I can’t state if the truck was stationary when it was hit but the impact was with the rear passenger corner of the truck. I thought it was moving into Ramsgate Road at the time it was hit. The truck therefore had right of way considering the Claimant was originally behind the car in lane 2 indicating right.
I was able to see the large white truck making its right turn that was very visible and there is no way the Claimant wouldn’t have seen this truck.”
In a statement, Benjamin Herrera, a student, who witnessed the accident while standing at the intersection of Ramsgate Avenue said relevantly:
“I saw the traffic lights had turned green for [the claimant] and she proceeded to go straight and had entered the intersection accordingly. While [the claimant] was proceeding through the intersection, I recall there were no other motor vehicles that had entered the intersection from the opposite direction nor any that were waiting and/or indicating to turn right.
While (the claimant) was proceeding through the intersection and had already entered it, suddenly and without warning, a truck pulled out from the opposite direction and appeared to have sped up to turn right just in front of (the claimant’s motor vehicle). The back end of his truck was sticking out and obstructing the intersection. This gave little to no time for (the claimant) to avoid the collision which caused her to collide with the rear end of the track. It appeared that he was rushing to make the turn but didn’t realise that there was backed up motor vehicles already on that road.”
Adjunct Associate Professor Robert Anderson, mechanical engineer, with experience in crash injury biomechanics, was asked to provide an expert report concerning the consistency of the versions of events of the claimant, the insured and Ms Petrovski with the available evidence, and to opine as to the cause of the accident, the point of impact, comment upon the claimant’s visibility of the insured before the accident, the likely speed of the claimant’s vehicle and whether the insured driver was stationary or moving at the time of the collision, whether the claimant could have avoided the accident, whether the claimant’s version of events is consistent with the damage to the vehicles involved, and any other matter he considered relevant.
Adjunct Associate Professor Anderson received a single image of the claimant’s vehicle at rest in the intersection after the crash, which image is depicted above. Adjunct Associate Professor Anderson used this photo to reconstruct the vehicle’s position within the roadway. He describes the photo as showing the damage vehicle within the intersection adjacent to an undefined field of debris and assumed, without more, that the vehicle had yet to be moved from the time of the collision to the time when the photograph was taken . There is no evidence which supports the accuracy of this assumption or that the extent of the debris caused by the accident is completely contained in the image used for the reconstruction.
The general features of the intersection were placed in a 3-D model of the scene using the software SketchUp. The model was based on a scaled aerial view of the intersection obtained from nearmap.com, and representations of traffic lights and street lights were placed into the model to allow the vehicles relative position to be established location of the camera that took the photo referred to above was reconstructed by noting that the point of view was close to the prolongation of the southern edge of the median on Ramsgate Road and was also position so that one of the street lights on Ramsgate Road was aligned with the traffic light. The cameras viewpoint was triangulated by reproducing this alignment in the model.
Having established what the expert said was the claimant’s vehicle’s position on the roadway, the model was then rotated to show the vehicle’s position within the intersection as follows:
[IMAGE UNABLE TO RENDER]
This reconstruction is said to indicate the claimant’s vehicle came to rest approximately
15.3 m beyond the intersection stop line.The next step identified by Adjunct Associate Professor Anderson was to identify the path of the claimant’s car and the insured’s truck and their likely positions at the point of collision. To do so the expert made assumptions that the point of collision was at the rear step of the truck as identified in the photo of the truck depicted above. The truck was turning into the right lane on Ramsgate Road which minimise the distance it travelled and maximise the distance travelled by the claimant and the claimant was travelling in the left lane of Chuter Road before the collision.
The point of collision was then identified by intersecting the likely parts of each vehicle also noting the final position of the vehicle.
A further refinement was made by simulating the crash in the reconstruction software PC –“Crash”. Minor adjustments to the vehicle positions were made to reproduce the claimant’s vehicle’s final position, assuming an impact speed of 30 kmph (the speed expected at that point in the intersection, although not the subject of direct or even indirect evidence) and moderate breaking after the collision. Vehicle specifications were based on inbuilt vehicle models available in the software. In the case of the track modifications were made based on the specifications for the truck.
The resulting reconstruction of the paths of each vehicle was shown in the following diagram.
[IMAGE UNABLE TO RENDER]
I observe that there is no evidence that would suggest that this is the path that the claimant took and it does not accord with my understanding, based on the evidence of the claimant andMs Petrovski, of where the claimant’s vehicle commenced its movement from lane two. Indeed, both Ms Petrovski’s and the claimant’s evidence would seem to support that the claimant’s vehicle had moved completely into lane one, whereas is this image depicts the claimant’s vehicle as outside lane one, and partially within lane two, before and at the opined point of impact. Ms Petrovski does not give evidence that the claimant’s vehicle swerved to avoid the collision, which would appear to be the case as depicted by the image above, yet Ms Petrovski states that both she and the claimant were in lane one. Only the claimant’s version of events suggests that the claimant steered right. This leads me to conclude that this depiction is inconsistent with both these eyewitness versions. I am also not satisfied on the basis of this evidence that the damage to the rear of the insured’s truck is necessarily consistent with how I understand impact with the truck was made. The image below shows the damage, which to my mind looks like an indentation by force from the emanating more from the rear of the truck’s rear step causing it to buckle inwards, not force emanating from an angle perpendicular to the step, which I would expect would crush the step inwards. These are but my expectations, however they are not addressed by any focused analysis by the expert.
[IMAGE UNABLE TO RENDER]
The final position of the claimant’s vehicle was said to be able to be reproduced over a small range of assumed truck speed (0-10 kmph) by making minor alterations to the angle at which the claimant’s vehicle approached the point of impact. I interpolate that there is no evidence as to speed and no calculations which would suggest that this is the correct assumption. These alterations suggested to the expert that the claimant was either travelling straight or moving slightly to the left at the point of the collision. The expert opined that there was no indication that the claimant’s vehicle had veered to the right as she suggested. I have dealt with this point immediately above.
In the expert’s opinion that the reconstruction indicates that at the time of the impact the insured had likely travelled 27 m from the holding line of the intersection. The expert assumed the claimant had been stationary, 2.5 m behind the vehicle in the right lane and the claimant would have travelled 18 m on the assumption that a passenger vehicle may take about five seconds to accelerate and traverse 18 m, at which time its speed is about 30 kmph. The witness, being Ms Petrovski described the claimant’s vehicle as slow. If the vehicle accelerated more slowly than average, the claimant would have taken longer to reach the point of impact and truck at a lower speed. I also interpolate that there is no basis for the assumed distance of 2.5 m behind the vehicle in the right lane. There is no evidence that the vehicle had remained behind the intersection lines or had proceeded into the intersection. There is also no evidence with respect to the type of first and turning vehicle in lane two or its length.
Given the unusual nature of the interaction, in the expert’s opinion, the damage is potentially consistent with a range of speeds. The steel step was torn through the top of the fender panel which was then pulled away and this intersection is likely to have been soft and a relatively low force, such that an impact of 30 kmph was considered plausible. I interpolate, further to my discussion above, that there is no evidence that the damage depicted in the photograph was occasion by this accident. Although I accept that the inference is open, I observe that this is an assumption that has not been exactly proved or scrutinised by the expert.
In offering his conclusions based on the questions asked of him, the expert relevantly opined that on the balance of the available evidence, and the possibility of the versions of events, it is more likely that the accident was caused by the claimant driving into the rear corner of the truck. He opined the evidence was broadly consistent with the collision speed of approximately 30 kmph for the claimant’s vehicle prior to the accident. He also opined that the evidence is consistent with the insured driver being stationary. Considering only the physical evidence, the expert opined it was not possible to rule out the possibility that the insured was travelling at a low speed. The expert opined that he was able to reproduce the rest position of the claimant’s vehicle and increase simulations with the truck speed set to 0 and also set to 10 kmph. He opined that if the truck was moving at the time of the collision, it was unlikely to have been at a speed exceeding 10 kmph. There was no evidence which clearly indicates whether the truck was moving or not at the time of the collision.
SUBMISSIONS
The claimant submits that weight should be given to the account given by Benjamin Herrera, who gives a first-hand account of what happened on the day of the accident pursuant to his witnessing it. This account together with the claimant’s should be preferred over that of the expert, the insured driver and Ms Petrovski.
She makes several criticisms of Ms Petrovski: first, on the basis that she was the driver of the following vehicle and the witness would not know if the truck had a right-of-way; second, the witness offered an opinion that it was the claimant’s fault, which opinion is undermined by the fact that she could not conclusively assert whether the truck was stationary or moving; third, she stated that she had dash cam footage which has not been produced (although I note that the insurer submits that there is no footage); and, fourth, the witness’ notation that it was a low speed accident does not correlate with the damages to the claimant’s motor vehicle.
The claimant is critical of Adjunct Associate Professor Anderson’s report. While respectful of his expertise, she notes that his report is predominantly based on assumptions and inferences which focus on the two different eyewitness accounts and prefers the version given by Ms Petrovski. She submits that the report is not probative of causation or fault.
The claimant submits therefore that the insurer has failed to discharge the evidential burden of proving the basis for the disentitlement to statutory benefits. She submits that the insurer’s conclusions based upon the fact that there are several different accounts, and therefore, it is not possible for the tribunal of fact to determine the claimant’s fault, if any.
The insurer relies on the report of Adjunct Associate Professor Anderson and submits that the claimant was mostly at fault for the motor vehicle accident on the basis that:
(a) the claimant’s evidence that she was halfway through the intersection when the QBE vehicle collided with the front left of her vehicle ought to be rejected;
(b) the claimant’s evidence that the QBE vehicle “sped up to the lights and turned right onto Ramsgate Road” while she was halfway through the intersection ought to be rejected;
(c) the claimant’s evidence that the QBE vehicle “collected me on the front left” ought to be rejected;
(d) the evidence of Master Herrera that the claimant’s vehicle was already in the intersection when the QBE vehicle turned right, as per the evidence of the claimant, ought to be rejected, and
(e) the evidence of Master Herrera that the QBE vehicle sped up and turned right, as per the evidence of the claimant, ought to be rejected.
The insurer maintains that the claimant was mostly at fault for the motor accident on the basis of the following:
(a) the claimant placed herself in a dangerous position by entering the intersection in circumstances where the QBE vehicle had already turned right and was stationary in the intersection;
(b) there was no opportunity for the QBE driver to avoid the accident as the claimant’s vehicle had not entered the intersection when the QBE driver turned right;
(c) the QBE vehicle was clearly visible to the claimant at all times;
(d) Adjunct Associate Professor Anderson has provided an analysis of the evidence based on his qualifications and experience as an accident reconstruction expert. His opinion and assessment has not been challenged by the claimant. It is submitted that the opinion of Adjunct Associate Professor Anderson should be preferred and accepted as opposed to the claimant’s evidence;
(e) Ms Petrovski’s evidence should be preferred and accepted as she had clear and unobstructed view of the intersection prior to the accident as the lead vehicle;
(f) a reasonable person in the position of the claimant would:
(i)not have entered the intersection in circumstances where there was already a vehicle stationary at the intersection and was waiting to complete the right hand turn manoeuvre;
(ii)have exercised greater caution and waited for a vehicle to complete the right-hand turn manoeuvre prior to entering the intersection;
(iii)not have created a dangerous situation by entering the intersection, and
(iv)have exercised greater caution prior to entering the intersection.
Consideration
The effect of the claimant’s submission is that faced with several accounts of how the accident occurred, which I interpolate she submits are irreconcilable, the insurer has failed to discharge its evidential burden to satisfy me that the basis for its entitlement to cease statutory benefits has provided for in ss 3.11 and 3.28 of the Act.
It is accepted that the insurer bears the evidentiary burden to prove the facts which bring its case within the exception to entitlement in ss 3.11 and 3.28 of the Act: Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909. Discussion of the evidentiary burden in Watts v Rake [1960] HCA 58; 108 CLR 158; Purkess v Crittenden [1965] HCA 34; 114 CLR 164 at 168; Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 (Strong) at 201–202 [53] and Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2014] NSWCA 440; (2015) 18 ANZ Insurance Cases 62-047 at 76,122 [53]–[55] demonstrates that the quality of the evidence led by the insurer must be assessed for its persuasiveness.
In discussing what is necessary to discharge the burden, in Strong at [78], the High Court referred to what Dixon J said in the seminal passage in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361. See also Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44]-[55] and Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; 297 ALR 56 at [48] per Emmett J.
The hearing proceeded on the papers at the parties’ request following my direction to them that they consider whether an oral hearing was required, given the divergence in the accounts.
The claimant has requested these reasons be expedited. I have done my best to accord with this request for expedition despite having experienced a prolonged illness.
It should be recorded that no witness gave evidence, and no witness was cross examined. Accordingly, the evidence of all witness accounts is unchallenged and untested. I have therefore not had occasion to consider the credibility and reliability of the accounts given by any witness. The difference in their accounts is, in my view, consistent with the well-known frailty of human memory: Watson v Foxman (1995) 49 NSWLR 315 at 319.
In respect of the weight to be given to the expert evidence, the claimant invokes the basis rule in so far as it applied to expert evidence has not been satisfied and therefore the insurer’s reasoning relying on it to support the disentitlement to statutory benefits is not made out. The basis rule at common-law is as defined by the plurality in Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [41] as a rule by which opinion evidence is to be excluded unless the factual basis upon which the opinion is proffered is established by other evidence. The basis rule is variously described as either a rule of admissibility or as a matter relevant to the weight to be given to the opinion rather, than a basis for its exclusion. Notwithstanding the fact that the Commission is not bound by the rules of evidence the basis rule would have application in determining the weight that I would attribute to the expert’s evidence.
I accept the claimant’s submissions that several of the assumptions upon which Adjunct Associate Professor Anderson’s report is based are without evidentiary foundation, in particular the relative and various positions of the claimant’s vehicle and the estimates as to speed. As I read his report these assumptions are incapable of severance from the composition of the report’s conclusions such that I am satisfied that I should treat those conclusions as unreliable.
Considering first, the insured driver’s evidence. In my view, his evidence does not accord with the preponderance of the accounts given by the other witnesses to the accident. This discord arises chiefly by reason of the fact that, if his version of events were to be accepted, he was present in the intersection for 30 seconds before he felt the claimant’s vehicle collide with his truck. To my mind that assertion renders his account of the accident and how it occurred completely inconsistent with all three eyewitness accounts, and, thereby, implausible. According to Ms Petrovski the lights had turned green, and the insured vehicle began to make the right turn at or about the same time as both Ms Petrovski and the claimant merged into lane one to continue straight into the intersection. In my view it is completely implausible that this manoeuvre took either the claimant or Ms Petrovski 30 seconds. Further, Ms Petrovski is unable to state whether the truck was stationary when the claimant collided with it. In my opinion, Ms Petrovski, would have been perfectly capable of making that assessment if it had been the case that the insured driver had been stationary for 30 seconds, as he claimed. The insured’s version also is discordant with Master Herrera’s account that there were no motor vehicles in the intersection or oncoming or waiting to turn right at the time that the claimant entered the intersection. Master Herrera could not plausibly have come to this conclusion if the insured truck had been present in the intersection for 30 seconds before it was hit. Therefore, I consider it appropriate to discount entirely the insured’s version of events.
This leaves the three accounts by the two eyewitnesses and the claimant.
There is an inconsistency between the claimant’s version of events and the version of events given by Master Herrera. The claimant’s evidence suggest that she was already in the intersection when the insured driver proceeded into the intersection. Master Herrera says that at the time of which the claimant had entered the intersection there were no motor vehicles that had entered the intersection from the opposite direction nor were there any waiting and or indicating to turn right. This is to be contrasted with the evidence of
Ms Petrovski who says that the insured vehicle was in the intersection and was commencing the execution of the right-hand turn when she and the claimant had moved out of lane two and into lane one and begun to travel straight. Comparing and contrasting these three versions, Master Herrera’s version would appear to be the outlier, as the preponderance of remaining evidence would favour a finding that the insured vehicle was visible to the oncoming traffic (viz. the claimant’s and Ms Petrovski’s accounts) at the time of their entry into the intersection.This leaves me with two different versions as to which vehicle was in the intersection first and in what position. If Ms Petrovski were to be preferred and the insured vehicle had commenced executing its turn when the claimant approached and entered the intersection, then the claimant owed the insured the right-of-way. Indeed, as did Ms Petrovski, yet Ms Petrovski does not give any evidence with respect to her personal reaction to the situation as a driver, instead she gives a somewhat castigatory opinion as to the claimant’s fault. If the claimant’s version were to be preferred then, she being in the intersection first, and in lane one, without a left-hand indicator on (or even with it on), she had the right-of-way and the insured driver ought have remained stationary in the intersection to allow her and other oncoming vehicles to pass before executing a right-hand turn. Both vehicles had a direct view of the oncoming traffic, but if one vehicle were to be preferred, I would prefer the claimant’s vehicle as having a better view it being first in train. However, I do not consider that this analysis provides me with a basis upon which I can soundly and prudently prefer one version of events over another, nor do I feel an actual persuasion with respect to the probability of one version accounting for what happened, more likely than not. Further, there are too many matters assumed by Adjunct Associate Professor Anderson for me to give sufficient weight to his conclusions so as to dispel the differences between these two remaining eyewitness accounts. Likewise, his report was based on the evidence of the insured driver, which I have found to be implausible.
Accordingly, I am inclined to the basis of the claimant’s submission, that as I am unable to reach a state of the requisite actual persuasion necessary to prefer one probability over the other, it follows that I am not satisfied that the insurer has discharged the evidentiary onus of proving that the claimant is wholly or mostly at fault for the accident.
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