Brandon v QBE Insurance (Australia) Limited
[2024] NSWPIC 244
•10 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Brandon v QBE Insurance (Australia) Limited [2024] NSWPIC 244 |
| CLAIMANT: | Kaine Brandon |
| INSURER: | QBE |
| MEMBER: | David Ford |
| DATE OF DECISION: | 10 May 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 under sections 3.11 and 3.28; claimant was driving his motor vehicle at a slow speed across a clearway zone in an attempt to make a right hand turn; insured driver approached the clearway zone at an excessive speed in the circumstances and did not keep a proper lookout for any vehicles attempting to cross the clearway zone; no explanation provided by the insured driver as to why he did not look out for vehicles attempting to cross the clearway zone; Held – motor accident not caused wholly or mostly by the fault of the claimant; claimant entitled to payment of legal costs assessed at the maximum regulated fee. |
| DETERMINATIONS MADE: | CERTIFICATE The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the motor accident was not caused wholly or mostly by the fault of the injured person. 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the motor accident was not caused wholly or mostly by the fault of the injured person. 3. Effective date: this determination takes effect on 10 May 2024. 4. Legal costs: the amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 are $1,919 plus GST. |
STATEMENT OF REASONS
INTRODUCTION
This is a dispute between Kaine Brandon (the claimant) and the insurer with respect to the payment of statutory benefits, pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the Act).
The insurer undertook an internal review, and a statement of reasons is attached to the reply form and is dated 10 January 2024.
The claimant seeks to challenge the determination.
On 16 September 2023, at approximately 11.00am, the claimant was driving his motor vehicle along Cutcliffe Avenue towards the intersection with Joseph Street at Regents Park. It was his intention to make a right-hand turn onto Joseph Street. This required him to cross the four northbound lanes of Joseph Street to execute the right-hand turn. He was able to transverse three lanes, but upon entering the 4th lane, his vehicle was struck by the motor vehicle being driven by the insured driver, who was travelling in a northerly direction along Joseph Street.
The insurer, in their statement of reasons, considered the claimant wholly or mostly at fault, and after 52 weeks, the weekly payments under ss 3.11 and 3.28 will be ceased. The claimant submits he was neither wholly or mostly at fault in the motor accident and is entitled to a continuation of statutory benefits, he has now filed this application seeking a determination of the dispute with the insurer.
Documents considered.
I have considered the documents provided in the Application and in the Reply and considered other documents which was subsequently lodged on the portal by both parties.
Claimant’s submissions
In the Application for Personal Injury Benefits Claim Form, dated 23 September 2023, the claimant provided the following description of the accident:
“I was leaving my street via Cutcliffe Ave turning right onto Joseph St as I do every day, I waited for all traffic on Joseph St to stop due to the lights going red on Amy St and Weeroona Rd. I have preceded into the intersection which is marked on the road ‘keep clear’ and ‘do not queue’. It essentially allows the residents access in and out of Cutcliffe Avenue. I have entered the marked part of the road, with caution and care, all three lanes of traffic had stopped and also the additional turning lane, four lanes total on my side of the road. Once again, before continuing any further, I looked up the road in the right turning lane to see if any cars were coming down it. I saw no cars coming down that lane, and as I was halfway into the lane, with the front part of my car, and a car, CRV-30D, a small hatchback came out of nowhere ,racing down that lane and directly impacted the driver’s side of the vehicle directly on the bull bar with the centre of the other driver’s bonnet and bumper the impact was that forceful it pushed my Ute almost 2 m”.
The claimant also provided a detailed statement 22 March 2024, and I note the following paragraphs of the statement as follows,
“13. I would enter the clearway keep clear zone 3 or 4 times a day, so over the years, I have lived in Lewis Street, I estimate I have done a right turn into Joseph St well over 6000 times and possibility as many as 6500 times.”
“17. When there is a break in the traffic I move slowly out into the clearway after having activated by right turning indicator and move across the 3 lanes of traffic because the traffic is stationary in 3 lanes, vision into the 4th lane is obscured. Due to my past experience, I know that there are stoplights controlling the traffic using the 4th lane.”
“20. By relying on my past experience and familiarity with the traffic patterns and the general behaviour of drivers using this stretch of road, while there is always a risk of a rogue vehicle speeding or not stopping and ignoring the keep clear sign, this possibility was sufficiently low and as a practical matter, I have always considered that it was reasonably safe to use the clearway”.
“27... It can be seen in the Dashcam that I move out across the clearway gradually and the nose of my vehicle is seen to nudge into lane 4. At .30 and at .31, there is a squeal of tyres and then the insured driver collides into my vehicle. There is nothing that I could do to prevent the insured vehicle driving into my vehicle.”
“28. The insured driver can be seen in the Dashcam, to enter the clear way without stopping or slowing down at the clearway stop line before colliding into my vehicle”.
”29. I am aware the insured driver stated to the insurer’s investigator that he was travelling at 60 kph, however based on my driving experience, I estimate he was travelling faster than 60 kph, as the force of the impact knocked my vehicle sideways My vehicle weighs about 2.4 tonnes, and an internet search states the insured vehicle was a 1 tonne Renault”.
“30. Also, the insured driver can be seen in the Dashcam footage to be travelling at a speed that limited his ability to slam on his brakes which was nearly instantaneous with the collision.”
“39. When crossing you are vulnerable, but the situation was made worse on the day by a minivan stationary at the stop line in the lane 3. The elevation of the minivan obscured my vision into lane 4 and would also obscure the vision of the insured driver. the Dashcam shows where the minivan had stopped”.
“41. I estimate at the time I entered the clearway; I was travelling at around 5-10kph which can be viewed in the Dashcam. In my experience, this speed is generally more than sufficient to cross through the clearway as assuming I do not have to stop. it will take around 4 seconds over window period of 60 seconds, when there is generally no traffic coming through in lane 4. In my experience, there is generally more than sufficient time to turn safely”.
“44 …
(c) the clearway is safe if the traffic in lane 4 travels at a speed that allows them to stop or slow down if a vehicle is in the clearway when their vision is obscured. I had virtually no time to see the insured driver. The insured driver had visual cues that the traffic, stationary, including the clearway stop line and the break in the traffic island to alert him to the clearway was being used”.
(r) with the benefit of hindsight, inadvertently moving into the lane 4 involved a slight risk, however that risk was no greater than any spontaneous decision me or any other driver had to make in the moment”,
Counsel for the claimant lodged detailed submissions dated 25 March 2024 and I will refer to these submissions and the insurer’s submissions dated 28 February 2024 and 12 April 2024 in my Reasons.
Insurer’s submissions
The insurer submits the accident was wholly or mostly the fault of the claimant. The insured driver has provided a statement dated 27 October 2023 and I note the following paragraphs of this statement as follows.
“29. The speed limit for this section of roadway I believe about 80kph. I was travelling at about 60kph. There were no cars in front or behind me in my lane as I drove through the intersection of cut Cutcliffe Avenue. I saw a maroon Toyota Hilux on my left driving towards ‘me. The front driver’s side bullbar of his car collided with the front bonnet of my car. I had no time to brake. I believe he had pulled out from Cutcliffe Street and must have been trying to get into the right-hand turn lane, that was already driving in. He mustn’t have seen me.”
“30. The impact wasn't too hard, and my airbags did not go off. No one in my car was injured. I moved the car to side street and got out I saw damage to the front bonnet of my car. There was no damage to the car because he had a bulbar.”
“31. I spoke to the driver of the other car. His name was Kane Brandon. He didn't appear to be injured. He said “it was your fault you were speeding ‘I said no, I wasn't. It was your fault, you should have given way you came into my lane.’ We exchanged licence details.”
There is also a statement from the insured's mother, who was a rear seat passenger in the insured vehicle at the time of the accident, however, her statement sheds no light on the circumstances surrounding the subject accident.
The insurer has submitted the claimant was negligent because he has breached Road Rule 72 of the New South Wales Road Rules 2014, regarding the obligation to give way at an intersection (except a T intersection or roundabout):
“FAULT
18 I define the term” fault’ used in s 3.11 and s.3.28 of the Act means a failure to exercise reasonable skill and care. The burden of proving for the purposes of s.3.11 and s.3.28 the accident was caused wholly or mostly by the fault of the claimant, rests on the insurer. See Insurance Australia limited trading as NRMA v Richards 2023 NSWSC 909 a [45].”
REASONS
Was the claimant wholly at fault in causing the accident?
I was assisted in my determination by viewing the Dashcam footage lodged on the portal by the solicitor for the claimant. The footage depicts the events leading up to the collision and confirms the clearway was not blocked by any vehicles, and the claimant, prior to the collision, was driving through the clearway at a slow speed.
The reasons stated by the insurer in the internal review dated 10January 2024 has made a reference to the Dashcam footage, but it is stated the insurer was not able to locate this footage nor was it viewed by the Insurer. The insurer, apart from referring to paragraphs from the statement of the insured driver, have based their decision to cease statutory benefits and alleged the claimant was wholly at fault because of the allegation he was in breach of road rule 72 (giving way at an intersection except a T intersection or roundabout).
The insured driver in his statement admits he was travelling at about 60kmpt as he approached the intersection of Cutcliffe Avenue and Joseph Street and further admits he did not see the claimant’s vehicle until just before the moment of impact. He states he had no time apply the brakes of his vehicle and take evasive action. He states there were no cars in front or behind him, as he was travelling in line 4, but makes no reference to the fact, as depicted in the Dashcam footage, there were many vehicles already stationary in lanes 1-2 and 3 of Joseph Street which had stopped before the clearway,
I therefore find the insured driver negligent in the driving office vehicle immediately prior to the collision, as I find he was travelling at an excessive speed in the circumstances as he approached the clear way and he was not keeping a proper lookout four vehicles entering the clear way,
I therefore find the claimant was not wholly at fault in causing the accident.
Was the accident caused mostly by the fault of the claimant?
The onus of proving contributory negligence rests upon the insurer. The driver of a motor vehicle is to take reasonable care for the safety of other road users.
In Manley vs Alexander (2005) HCA 79 2005 80 ALJ R413 at [11] the majority of the High Court emphasised the duty of a driver to give “reasonable attention to all that is happening on and near the roadway that might present a source of danger”.
A claimant who asserts a motorist is negligent in fighting to keep a proper lookout must establish the motorist had the opportunity to see the claimant and failed to do so. This is consistent with the principle in Manley v Alexander that is the duty of a motorist to be observant of all possible sources of danger on the road.
Section 5R (1) the Civil Liability Act NSW 2002 provides principles that are applicable in determining whether a person has been negligent can also apply in determining whether the person who has suffered harm has been contributory negligent in failing to take precaution against the risk of that harm. The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at the time see s 5R (2) (a) and (b).
Section 5B of the Civil Liability Act 2002 provides 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;
(d) the social utility of the activity that creates the risk of harm, and
(e) the determination of whether a claimant has been contributory negligent is to be decided objectively on the basis of the facts and circumstances of the case, see Serrao ( by his tutor) Serrao v Cornelius (2) 2016 NSW CA 231 (at [61]) and Tand X Company Ltd v Chivas 2014 NSW CA 235 at [51].
I find the insured driver, immediately prior to the collision, was driving at an excessive speed in the circumstances, and was not keeping a proper lookout for vehicles crossing the clearway section of Joseph Street. If he had looked to his left, he would have observed the claimant’s vehicle travelling at a slow speed through the clearway, and would have been able to reduce his speed by applying his brakes, and a collision might have been avoided. There is also the fact that many other vehicles in lanes 1-2 and three work stationary before the clearway section of the road. This would have being an indication to the insured driver that possibly a vehicle or vehicles driving through the clear way section of the road.
I further find the claimant was not keeping a proper lookout in the circumstances, and in his statement, he concedes at paragraph 39, referred to above, he was “vulnerable" because of the presence of a a minivan stationary at the stop line in lane 3. He states the elevation of the minivan obscured his vision in lane 4. I find the claimant, in such circumstances, brought his vehicle to a halt shortly before driving into lane 4 and did not look for any vehicle approaching from his right. I do not accept he statement that he “nudged” his vehicle into lane 4, but rather, I find he drove into lane 4 at a slow speed.
I accept the submission contained in paragraph 54 of the claimant’s submissions which states as follows:
“54. In this case the rules are not relevant, but to the extent it would be, it would be no more than a factor amongst many as to what reasonable care was taken see coalesce viscara 200829 NVR 4372008 NSWC a 17 at 76.”
Therefore, I find the claimant is guilty of contributory negligence as such, but I do not find his contributory negligence was greater than 61%.
I therefore find the claimant was not mostly at fault in causing the accident.
FINDINGS
I therefore find the accident of 16 September 2023 was not caused wholly by the fault of the claimant.
I also find the accident of 16 September 2023 was not caused mostly by the fault of the claimant.
COSTS AND DISBURSEMENTS
The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,919 plus GST.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
(a) for the purposes of s 3.11 of the Act, the motor accident was not caused wholly by the fault of the claimant.
(b) For the purposes of s 3.28 of the Act, the motor accident was not caused mostly by the fault of the claimant.
(c) Effective date: this determination takes effect on 10 May 2024.
(d) Legal costs: $1,919 plus GST.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
(a) the Act.
(b) Motor Accident Injuries Act Regulation 2017.
(c) Motor Accident Guidelines 2020, and
(d) Civil Liability Act 2002.
0
0
0