Bowyer v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Bowyer v Allianz Australia Insurance Limited [2022] NSWPIC 515
Claimant:	Belinda Bowyer
insurer:	Allianz Australia Insurance Limited
Member:	Bridie Nolan
DATE OF DECISION:	16 September 2022
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims assessment; whether for the purposes of section 3.11 of the Motor Accident Injuries Act 2017 the motor accident was caused by the fault of another person; learner driver executing left-hand turn into T-intersection; claimant collided with learner driver vehicle; whether the claimant kept a proper lookout; whether the insured driver checked for oncoming vehicles before executing turn; resolution based on implausibility of acceleration required by claimant to collide with the insured vehicle; Held – accident caused by the fault of the insured driver.
determinations made:	1. For the purposes of s 3.11 the motor accident was not caused by the fault of another person. 2. Effective Date: This determination takes effect on 19 November 2020. 3. Legal Costs: The claimant was self-represented and not entitled to legal costs.

Reasons for Decision

Issued under s 7.36(5) of the Motor Accident Injuries Act 2017

Background

By Application for Personal Injury Damages dated 20 January 2021, the claimant applied for personal injury damages in respect to the motor vehicle accident, which occurred on 19 November 2020.
The insurer notified the claimant by an internal review decision dated 3 June 2021, that it affirmed the original decision dated 12 May 2021, that the claimant was wholly at fault for the accident for failure to keep a proper lookout, travel at speed excessive in the circumstances, and a failure to pass the vehicle, the subject of the accident, at a sufficient distance to avoid a collision with the vehicle in breach of s 144 of the Road Rules 2014 (NSW).
My determination is therefore in respect of a miscellaneous claims dispute arising from this decision which, pursuant to the Motor Accidents Injuries Act 2017 (the MAI Act), Schedule 2, cl 3(2)(d), is whether for the purposes of s 3.11 of the MAI Act, the motor accident was caused by the fault of another person.

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Reasons

The claimant is 56 years old. She lives in Collaroy, New South Wales, and is a permanent employee with Country Road Group since March 2017. She has been driving since 1982.
On 19 November 2020, the claimant left her home at Collaroy Plateau, at approximately 5:15 pm in her Volkswagen Golf with her 16-year-old son and pet dog. Her dog was seated and restrained in the front passenger seat and her son was seated in the back left passenger seat with his seatbelt on. The claimant was taking her son to his touch football match at Nolan Reserve, North Manly, for a
6:15 pm game. She was planning to take her dog for a walk while he played. The claimant says that she was not in a rush, and that she had plenty of time to travel to the venue prior to her son’s game.
She decided to take the back route to Nolan Reserve, Manly, so she turned left off Pittwater Road onto Mitchell Road, an area which the claimant is very well familiar and understands to be a 50km per hour zone with many roundabouts. She notes that it is usually a high-traffic area.
She says that she travelled down Mitchell Road at approximately 40 to 50km per hour, slowing down at each roundabout, giving way before entering and exiting the roundabout. She came to the end of Mitchell Road and stopped at the T-intersection. She says that she checked to ensure that no vehicles were coming from her left or right before she turned right onto Wattle Road and then proceeded driving along Wattle Road at approximately 30km per hour. On approaching the upcoming left-hand corner, she reduced her speed even more and turned left into Short Street. As she drove around the corner into Short Street, she had no other vehicles in front of her car, and from what she observed, there were no other vehicles driving ahead in the left lane, travelling along Short Street. I interpolate at this point that the evidence establishes that the distance from when the claimant turned onto Short Street and when she reached the relevant point of impact to the subject of this claim, is 101 m.
The claimant says that she continued along Short Street at approximately 40km to 50km per hour passing Amourin Street on her left. She did not observe any vehicles at the intersection of Amourin Street and Short Street. She passed Amourin Street on her left, and continued travelling a short distance along Short Street, when her vehicle was impacted on the front left hand side panel and wheel of the insured vehicle, which caused her vehicle to go into safety brake mode, side slide and flip over to the right, with the car landing on the roof and bonnet, finally spinning around and coming to a stop facing North.
According to the police report about the incident, the accident occurred at 5:35 pm. This is consistent with the claimant’s statement that she left home at about 5:15 pm, and that she was not due at the oval for her son’s game, I interpolate, until at least 5:45 pm, being half an hour before the game was due to commence.
The claimant says that her son, her dog, and she were left upside down in the car. The car’s engine was still running but she was able to turn it off by the ignition button.
She denies travelling at the speed alleged by the insured, a learner driver, had already travelled a short distance along Short Street and veered left into the curb. She did not see the vehicle, nor did she attempt to overtake it or swerve to avoid it as it was not travelling in the lane in front of her vehicle on Short Street.
She refers to the footage of her vehicle at the scene of the accident and cites that there was no panel damage or markings on the left side of the vehicle. She contends that the panel on the left side of the vehicle would have been impacted by the vehicle were the accident to have occurred as the insurer alleges. In the claimant’s view the accident was caused by the insured vehicle.
She remarks that the statement given by the insured driver’s driving instructor states that the only damage to his vehicle was the external driver’s side mirror and the front ride guard. The photos provided by the insured to show the damage to his vehicle were not taken at the scene of the accident but at a later date in a different location.
The insurer relies on the contemporaneous statement of the claimant to police contained in the police notebook. The claimant stated there that she had come around a corner into Short Street and continued up the street and then heard an almighty bang and her car flipped. The claimant was asked whether there was anything she could have done to avoid the crash and answered, “I don’t believe so, no, I was just looking ahead just driving, I didn’t see them”.
The insurer submits this is an admission of negligence by the claimant being she was not keeping a proper lookout and she did not see the insured vehicle before she heard the collision. The insurer submits that the fact that the claimant did not see the insured vehicle before hearing the collision was because she was not keeping a proper lookout. For reasons to which I will come I do not view her statement this way.
The insurer submits the photo taken of the accident, as well as the aerial view of the accident sight depict a straight, wide suburban street, with no obstacles in the sight lines of the claimant as she approached the slow-moving vehicle, travelling wholly within its lane, in the same direction as the claimant’s vehicle. It submits there was no explanation as to why the claimant did not see the insured vehicle. It relies upon the Traffic Sergeant’s remark that it appears that the claimant was distracted.
In relation to the speed of her vehicle the claimant was asked by police at what speed she was travelling to which she replied, “I can’t tell you what speed I was going at, I wouldn’t have been speeding. At the most, I would have been doing 50km per hour”. The insurer submits that 50km per hour was only a guess and that the claimant did not know the speed she was travelling at the time of the collision. Indeed, I observe that the same can well be said of the evidence of estimation of speed upon which the insurer in fact relies, that of the driving instructor, to which I will come.
The insurer submits that the claimant’s vehicle’s speed was much higher than 50km per hour and relies upon the evidence of the insured driving instructor, who saw the claimant’s vehicle approach from the rear. The insurer submits that the driving instructor, with the driving experience of a qualified instructor, was a more reliable estimator of speed of the claimant’s vehicle as he saw it approach. He said in his statement that he saw the claimant’s vehicle travelling “really fast” and was around 3 to 4 m behind her car. He could also see that the car was coming from behind from the external mirror on the driver’s side and thinks the car was travelling at least 80 km per hour. They were about 20 m into Short Street. As the evidence I will discuss later suggests, this estimation is a convenient one. On one view, it aligns perfectly with the distance travelled and the time the insured vehicle is stated to have been on Short Street before the accident occurs – 4 seconds. However, as I will discuss below, it fails to take into account the fact that the claimant’s vehicle would have needed to have accelerated to the speed of 80 km an hour from the starting speed of 30 km an hour, which I accept, by reason of the need to negotiate a perpendicular turn at Wattle Road, is the speed at which the claimant was driving when she entered Short Street. It is for this reason that I consider the driving instructor’s estimation of speed to be contrived.
The insurer also submits that the claimant was travelling at excessive speed because the vehicle had rolled onto its roof after colliding with the insured vehicle. I have no evidence from a crash expert as to whether this is indicative of the speed at which the claimant was travelling. This fact in isolation could be described by many different features of the incident, it is therefore safer that I give it little weight.
The insurer refers to the evidence of the claimant’s son, who provided a statement to police wherein he stated that he was seated in the rear of the claimant’s vehicle as a passenger and looking at his phone prior to the collision. He says in his statement that he saw the other red Mazda.
“It was a learner driving instructor. It was on the left side of the road, was parked and then started veering out onto Short Street, as we got closer, and that’s when the crash happened. I didn’t see where the car came from beforehand. The red Mazda hit our front left wheel and then our car flipped over.”
The insurer submits that this statement is unreliable because he did not see where the insured vehicle had come from, likely due to the fact that he was on his phone in the rear of the vehicle. It submits that when he first sighted the insured vehicle, he was mistakenly considering it in a parked position on Short Street prior to the collision, although he concedes that he did not know where the vehicle had come from beforehand. As the matter was not the subject of an oral hearing, by agreement of the parties, none of these propositions were put to the claimant’s son. I therefore am not satisfied that his evidence is in any way undermined, as it appears to me, objectively viewed, in the context of the entirety of the evidence his evidence of the mechanic of the incident are entirely consistent with what I find happened.
The insurer denies the insured vehicle was parked in Short Street at any time prior to the collision. The insurer submits that the claimant’s version of events as provided in the claimant’s application for personal injury benefits, that the insured vehicle was stopped on the left side kerb and had pulled out to the right and directly t-boned the left front wheel, has been adopted from the version provided by the claimant’s son as the claimant herself did not see the insured vehicle at all prior to the hearing of any almighty bang. The version of the claimant’s son is disputed as inconsistent, with the statements of both the insured driver and the insured driving instructor and will not be accepted as they both confirm they entered Short Steet from Amourin Street and had not been parked in Short Street at all prior to the collision. While this may be the case, that does not mean that the vehicle did not appear to be parked. To my mind it is entirely consistent with the practice of learner drivers to be tentative in their approach to turning corners, inter alia. It may very well be that the car appeared to be parked because it was moving so slowly. Indeed, there is much in the evidence of the insured driver and the driving instructor to support this finding. The evidence is that the insured vehicle was indeed moving slowly. The speed calculations upon which the parties rely, and to which I will come, would suggest that it was moving at 18 km an hour. Indeed, the insured vehicle only moved 10 m, or at the most 18 m, in the space of 4 seconds. This would appear to the naked eye as though the car was parked. It is also not a safe speed at which to be travelling in circumstances where other vehicles are already or likely to be travelling on the road.
On this matter, the insurer relies upon the insured driver’s contemporaneous police statement. Therein, she stated that she had come to the intersection of Short Street and Amourin Street where she took instructions in relation to hand placement on the steering wheel. She then turned left into Short Street and had travelled for about 20 m at approximately 20 km per hour when the claimant’s vehicle has gone very fast, passed her on the right-hand side and hit the right-side mirror causing her to scream and it flipped onto its roof. The fact that the insured driver required tutelage on hand placement is consistent with the inference that I draw, that she was an inexperienced learner driver from this I infer her approach to negotiating the turn onto Short Street could well have been as it was perceived by the claimant’s son, which I have discussed above. This inference is also available on the insured driver’s own evidence which I discuss below.
The insured driver gave a statement to police and investigators confirming that she had stopped at the intersection of Amourin Street and Short Street. She had a discussion with her instructor regarding doing “shoulder checks” and making sure she looked to her right and see there were no cars coming from her right, which would have given her the right of way. She confirmed her left indicator was on as she wanted to turn left into Short Street. There were no cars behind her at the time. The insured driver confirmed that she could see all the way along Short Street to her right and there were no cars coming from her right. Her instructor told her she could make a left turn which she did.
She stated that the insured vehicle was fully in Short Street and travelling at around 15 to 20 km per hour, “really, really slow” [my emphasis] and she was instructed to keep the steering wheel straight and how far to be from the left kerb, especially when there were parked cars. She recalls her instructor telling her to go a bit faster and keep her steering wheel straight when she saw the claimant’s vehicle coming from the right side of her car. In my view, this is not the standard of an experienced learner driver, quite the opposite.
The insured described the claimant’s vehicle overtaking her vehicle. She said that she;
“saw the car coming and it was right next to me, and I looked to the driver and I could clearly see the driver of the car … as I was looking at the lady who was driving the white car, the front of her car, I’m not sure what part of her car, but her car has hit the driver’s door and front right corner of my car and right mirror. When the other car has impacted my car, it caused my car to jerk to the left, my instructor has applied the brake on his side, as there are dual controls in the car, which has then brought our car to a stop. The lady’s car has hit [the] right side mirror of our car and that has caused her car to flip onto its roof.”
The insurer relies upon the photographs of damage to the driver’s side of the insured vehicle depicted which depicts white horizontal paint scrape marks along the driver’s door, a missing side rear-view mirror, damage to the wheel arch of the offside driver’s wheel, damage to the offside quarter panel and damage to the offside of the bumper bar. The insurer submits this damage seen on the insured vehicle is inconsistent with the claimant’s allegation that the insured vehicle pulled out from the kerb and t-boned her vehicle, first, on the basis that she did not see this occur as per her police statement and second, as inconsistent with both the insured driver’s police statement and the insured driver’s instructor’s statement. Furthermore, it submits there is no damage to the front-end of the insured vehicle which one would expect from a T-bone collision. The insurer submits that there was a side swipe collision caused by the claimant who failed to keep a sufficient distance from the insured vehicle while overtaking it, which is consistent with the damage seen to the insured vehicle.
The insurer also relies upon the statement of the insured driving instructor to police, in which it is said that he confirmed that the vehicle had stopped at the intersection of Short Street, and they checked the shoulder of both sides of Short Street and made sure that no cars were coming before making the left turn onto Short Street. It was after the driver had completed the turn and travelled about 10 m into Short Street when he first sighted the claimant’s vehicle immediately before it collided with their vehicle. He was asked whether there was anything that the driver could have done to avoid the accident and replied at page 18 of the notebook “no, we were very careful, we had completed the turn and we were driving slowly”.
The insurer also relies upon the statement of the insured driver where the insured driver instructor confirmed that they were stationary at the intersection of Short Street and he instructed the driver to look to her right first along Short Street, which she also did. He said that he could see almost 200 m to his right and there were no cars coming from his right. He instructed the driver to turn left, which she did, very slowly. He confirmed that they were fully on Short Street and had travelled no more than 20 km per hour (I interpolate here no more than 10 to 20 m consistently with that which I have set out above) and he instructed the driver to straighten the vehicle so that it was parallel with the kerb and at that point the car was only just slightly off centre to the right and there were parked cars on the left. He looked in the internal rear vision mirror which is mounted on his side of the vehicle, and he saw the claimant’s vehicle approach from Short Street travelling “really fast” about 3 to 4 m behind his vehicle. He said he could also see the car coming from behind through the external mirror of the driver’s side. He said he felt the car was travelling at least 80 km per hour, and that they were about 20 m into the street.
The insurer disputes the findings of Constable Alex Smith wherein he assumed a penalty notice to the insured driver by virtue of the fact that she had caused the collision. It relies upon the version having been rejected or disregarded by Traffic Sergeant Jelovic in response to the application for review. Constable Smith alleged that the insured driver had “constantly changed her version of events in attempt to absolve herself of responsibility for the collision” yet, the insurer submits, there are no inconsistencies between the version she has provided police and it was certainly not inconsistent with her subsequent statement to investigators. It relies upon the fact it says that Constable Smith ignored the fact that the insured driver and the insured driving instructor had checked that Short Street was clear of traffic before turning left onto it and ignored the fact that they had already travelled 10 to 20 m at a very slow speed on Short Street before the claimant attempted to unsuccessfully overtake the vehicle. It submits he had also ignored the fact that the claimant did not see the insured vehicle at all prior to hearing the collision when the vehicle was there to be seen. It relies upon Traffic Sergeant Jelovic’s decision to overrule the penalty notice and cancel it.

In further submissions following a teleconference report of 20 August 2021, the insurer provided a response to the following, which I set out in my teleconference report:
“1. The insurer submits that the accident was caused whollly by the fault of the claimant by reason of an alleged failure to keep a proper lookout, an alleged use of excessive speed in the circumstances, and a failure to pass a vehicle at a sufficient distance to avoid a collision in breach of Rule 144 of the Road Rules.
2.      The claimant says that she was travelling to her son’s touch football match at Nolan Reserve in North Manly for a 6:15 pm game. She was very familiar with the area in which she was travelling which is a 50 km zone with a lot of roundabouts.   She says she was travelling down Short Street, the street upon which the accident occurred, with no other vehicles in front of her car and from what she observed there were no other vehicles driving ahead. She said she was travelling at a speed of 40-50 kms an hour passing Amourin Street on her left. She continued travelling a short distance when her vehicle was impacted on the front left hand side panel and wheel which caused her vehicle to apply safety brake mode, slide-slip and flip over to the right landing on the car’s roof and bonnet.
3.     She denies travelling at a high speed of 80 kms an hour contrary to what the learner driver and driving instructor have asserted. She believes that the learner driver had already turned into Short Street and travelled a short distance along Short Street and veered to the left into the kerb. She says she did not overtake or swerve to avoid the vehicle as it was not travelling in the lane in front of her vehicle on Short Street.
4.     It is apparent to me that there is an inconsistency on the face of the insurer’s material. The driving instructor in his statement says that his view up Short Street was about 200 metres, was clear and was unobstructed. He says that when the accident occurred the learner driver whom he was instructing had turned into Short Street and had travelled about 20 metres. The speed at which the learner driver was travelling was about 20 kms per hour. If the insured driver had travelled 20 metres at the speed of 20 kms per hour it would have taken four (4) seconds to do so. This would mean that four (4) seconds earlier the insured driver would have been checking for oncoming traffic in the direction in which the claimant’s car was travelling, namely to the right.
5.     Assuming for the purposes of argument that the claimant was travelling at 80 kms per hour, the claimant, that five (5) seconds earlier would have been 110 metres to the right of the learner driver on Short Street, as she sat at the intersection of Amourin and Short Streets. If the view of Short Street were unobstructed and the driving instructor was capable of ascertaining the claimant’s speed at the time of impact, he similary would have been able to ascertain theclaimant’s speed at the time of instructing the learner driver to execute the left turn into Short Street. It occurs to me, in these premises, that a prudent driving instructor exercising reasonable care for both himself and the learner driver and passengers in the oncoming car, would instruct the learner driver to wait until the obviously speeding car had passed so as not to create any misadventure.
6.     These uncontroverted facts which emerge form the material upon which the insurer relies, appear to be inconsistent with the submissions that the insurer makes. It would seem to suggest that the insured drivers are mistaken in their evidence.
7.     At the preliminary teleconference I informed the parties that if I were to form the view that there was material which was adverse to the outcome of either party and was not openly known on the material before me, that I would inform them of such and seek submissions. Given the incosistency which I have identified, I will provide the insurer with an opportunity to provide any further submissions that it wishes to make on this issue. Thereafter, the claimant may respond.”
The insurer submits that both the driving instructor and the insured learner driver had a clear, unobstructed view up Short Street from Amourin Street before turning onto Short Street as their unchallenged evidence supports. The insured driver confirmed that she was instructed to do a shoulder check which required her to look over her shoulder for traffic and looked to her right to see there were no cars coming from her right. This check was also made by the insured driver. The insurer submits that the only fact incorrect from the driving instructor’s statement is his estimate of the distance between Amourin Street and the end of Short Street which is from where the claimant must have arrived as the road turns 90 degrees East onto Wattle Road. The driving instructor, the insurer submits, as is often the case with witnesses estimating distance has incorrectly assessed that distance. Ironically, this is the distance that the driving instructor could estimate while stationary and looking through a window, unlike the estimation of the claimant’s speed which he based on what he saw through a rear vision mirror.
The insurer relies on an extract from Google maps which measures the distance between Wattle Road and Amourin Street at 81 m. The next distance is between Amourin Street to the point marked on the aerial photo as being the point of impact which is about 21 m according to the insurer’s submissions and the use of Google maps. Accordingly, it submits that 20 km per hour and 4 seconds earlier that the insured driver had turned into Short Street. A vehicle travelling at 22 m per second over 4 seconds was earlier 88 m away and therefore out of sight if travelling from a distance of 81 m to Amourin Street. It submits therefore, that 4 seconds before the point of impact the claimant’s vehicle was not in Short Street. It submits that the unchallenged evidence of both the insured driver and the instructor is that the claimant’s vehicle was not there when they checked before entering in Short Street. As I have noted above, there is a key lacuna in this estimation which is the fact that the claimant had made a left-hand turn onto Short Street.
The claimant in response to these submissions agrees with the distance between where the accident occurred, and Amourin Street is 20 m. She also agrees with the proposition the insurer puts that it took the learner driver 4 seconds to travel 21 m on Short Street and that this means that the insured vehicle was travelling at approximately 20 km per hour. Although, I note that the appropriate calculation with those parameters, is 18.9 km per hour.
I note that if these parameters are accepted, then over the 4 seconds, between when the insured driver said she conducted the “shoulder check” and when she reached the 20 m where the accident occurred over the 4 seconds, the claimant is alleged to have travelled in excess of 101 m. If she were to have done so, without more, in those 4 seconds, she would have been travelling at 90.9 km per hour to cover that distance.
Prior to entering Short Street, the claimant had just taken a perpendicular turn onto Short Street, which she says she took at approximately 30 km per hour. She says that she did not accelerate to the speed of 80 km per hour as she drove along Short Street. There is some real cogency to this submission. What the insurer seems to be overlooking in its calculations is this corner, and the speed at which the claimant would necessarily need to be travelling to negotiate it. In particular, the insurer, in order to be able to make good the speed at which it alleges the claimant was travelling, between 80km per hour, needs to factor in the relevant acceleration that the claimant would need to undertake in order to travel the 101 m that she allegedly travelled prior to the accident so that she could be out of view at the time which the insured driver conducted the so called “shoulder check”.
There are many variables to this calculation as to acceleration, however, the parties have been content to engage in calculations of speed, with a view to establishing or undermining allegations of fault. If I assume start speed at the entry upon Short Street at 30 km an hour that means that the claimant was travelling at 8.3 m/s. If the claimant only had 4 seconds to cover the distance of 101 m, then, on my calculation she would have needed to have accelerated to a velocity of 151.9 km per hour to collide with the insured vehicle as she did at + 8.3. That is:
Distance = final speed + start speed x time
2
101 metres = V + 8.3 x 4
2
V = (101/4) – 8.3 = 42.2 metres/ second, which is = 151.9 km/ hour
In my view, I consider it implausible that the claimant did accelerate, or was even capable of accelerating to that speed, in her vehicle, over that distance. Therefore, on the evidence as it has been effectively agreed between the parties, the only available conclusion is that the claimant was visible on Short Street at the time the insured driver was stationary at the intersection with Amourin Street. I find therefore that both the insured and driving instructor were mistaken in their evidence. I find that the insured driver failed to properly look to determine if there was a vehicle on Short Street to which she was required to give way before entering. I find therefore that the insured driver having failed to do this, by her negligence, she caused the accident.
As there is no allegation of contributory negligence, but rather the question is whether the accident was caused by the fault of another person, I am not required to go further and determine the claimant’s contribution to the accident, if any.

Conclusion

My determination of the Miscellaneous Claim is as follows:

For the purposes of s 3.11, the motor accident was not caused by the fault of another person.
Effective Date: This determination takes effect on 19 November 2020.
The claimant was self-represented and not entitled to legal costs.

Legislation

In making my decision I have considered the following legislation and guidelines:
• the MAI Act.

[2022] NSWPIC 515

16 September 2022