Brown v The Nominal Defendant
[2022] NSWPIC 65
•14 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Brown v The Nominal Defendant [2022] NSWPIC 65 |
| CLAIMANT: | Scot Brown |
| INSURER: | The Nominal Defendant |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 14 February 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; statutory benefits claim; denial of liability for statutory benefits beyond the first 26 weeks on the basis the accident was caused wholly or mostly by the fault of the claimant; initial impact between claimant and QBE insured vehicle caused loss of control and two further impacts with another vehicle and an object; police report concluded accident caused by unidentified vehicle resulting in claim being transferred to the Nominal Defendant; incorrect history recorded by police; clarification from QBE insured whether unidentified vehicle involved obtained after proceedings commenced in Commission; Held - no unidentified vehicle involved in the cause of the accident; accident caused wholly by the fault of the claimant; in the alternative there may have been primary fault on the part of QBE’s insured vehicle but likely to be significant reduction for contributory negligence and therefore claimant would have been mostly at fault. |
| DETERMINATIONS MADE: | In accordance with Division 7.6 of the Motor Accident Injuries Act2017, the Commission’s assessment is: 1. For the purposes of section 3.11 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant. 2. For the purposes of section 3.28 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant. |
STATEMENT OF REASONS
INTRODUCTION
Mr Scot Brown was involved in a motor accident on the M1 near Freeman’s Waterhole at about 5.50am on 26 March 2019.
A collision occurred between a truck driven by a Mr Cook (insured by QBE) and Mr Brown’s yellow Audi. A further collision occurred between Mr Brown’s vehicle and a vehicle driven by Mr Mumford.
Mr Brown was injured in the accident and made a claim for statutory benefits against QBE, the third-party insurer of Mr Cook’s truck.
A report by the police into this accident refers to an unidentified vehicle being involved and concluded that this unidentified vehicle caused the accident. QBE therefore referred the statutory benefits claim to the Nominal Defendant for management. NRMA is the insurer acting as agent for the Nominal Defendant and it accepted the claim and has paid Mr Brown his statutory benefits for a period of about two years[1].
[1] Section 2.27(2) of the Act says that any action against the Nominal Defendant is to be taken in that name, Section 2.36 provides for the allocation of claims made against the Nominal Defendant to licensed insurers (such as AAI Limited which trades as NRMA Insurance). The insurer is then authorised to act on behalf of the Nominal Defendant and in its name. For simplicity I will refer to the insurer acting on behalf of the Nominal Defendant as NRMA throughout this decision.
NRMA terminated Mr Brown’s statutory benefits due to a report received from Dr Andrew McIntosh who concluded there was no evidence of an unidentified vehicle being involved. The termination of Mr Brown’s statutory benefits was referred for internal review by NRMA and the original decision was affirmed. Mr Brown referred the dispute about his entitlement to statutory benefits to the Personal Injury Commission (the Commission). The dispute was referred to me for determination and a teleconference was held on 15 November 2021.
NRMA then referred to the Commission, a dispute between it and QBE as to which of the two insurers should be the relevant insurer and pay Mr Brown any further statutory benefits to which he may be entitled. On 9 December 2021 a teleconference was held in that matter concurrently with the second teleconference in the first matter.
Mr Brown requested I deal with his matter with some expedition due to his impecunious financial state. It was determined that the issue of whether Mr Brown was wholly or mostly at fault for causing the accident would be dealt with first. Subject to the outcome of that dispute, the ‘relevant insurer’ dispute would then be determined.
The matter was set down for hearing on 14 January 2022. That date was vacated as Mr Brown was admitted to hospital and was unable to attend the hearing. At a teleconference on 7 February 2022 following discussions with the parties, it was determined that the matter would be decided ‘on the papers’ that is on the evidence and submissions filed by all parties.
LEGISLATIVE FRAMEWORK AND INSURER’S DECISION MAKING
General provisions
Mr Brown’s accident and the claims arising from it are governed by the Motor Accident Injuries Act2017 (the MAI Act).
That Act has two primary functions:
(a) for the motoring public of NSW, it provides for the compulsory insurance of all registered motor vehicles in the state, the setting of premiums for that insurance and the licensing and regulation of insurers who sell the insurance, and
(b) for people killed or injured in car accidents, it establishes a scheme for the payment of statutory benefits under Part 3 and continues the scheme for lump sum compensation under Part 4 of the MAI Act.
Mr Brown has made two claims arising out of his accident on 26 March 2019. He has made a claim for statutory benefits (weekly income loss and treatment) and a claim for lump sum compensation or damages.
Mr Brown’s damages claim has not yet been referred to the Commission. The claim the subject of the current proceedings is his claim for statutory benefits which is subject to the provisions in Part 3 of the MAI Act.
Statutory benefits provisions
Section 3.1 provides that if a person is injured in a motor accident, statutory benefits are payable, regardless of whether there is any fault on the part of the owner or driver of any motor vehicle involved and even if the accident was caused by the fault of the person claiming the benefits.
However, there are limitations and restrictions as to who is to receive statutory benefits and for how long as follows:
(a) no benefits are payable at all if the person injured has a workers compensation claim, or the injured person was the owner or driver of an unregistered vehicle and was wholly or mostly at fault or if the injured person was charged with or convicted of a serious driving offence[2];
(b) benefits are payable for the first 26 weeks after the accident regardless of fault;
(c) benefits are payable more than 26 weeks after the accident if the claimant has more than minor injuries and if the accident was not caused wholly or mostly by the claimant’s fault[3], and
(d) weekly income replacement statutory benefits are payable for up to 104 weeks after the accident. If there is a pending claim for damages, benefits are payable for up to 156 weeks and up to 260 weeks if there is a pending claim for damages and the claimant has a whole person impairment of greater than 10%[4].
[2] Sections 3.35, 3.36 and 3.37.
[3] Sections 3.11(1) and s 3.28(1).
[4] Section 3.12.
Section 6.19 of the MAI Act requires the insurer to notify the claimant of whether it accepts or denies liability to pay statutory benefits, for the first 26 week period[5] and then for the period after the first 26 weeks[6]. Section 6.19 also provides that an insurer can accept liability for statutory benefits after denying liability and can deny liability after first accepting it.[7]
[5] Section 6.19(1) requires this notice to be issued within four weeks of the claim being made.
[6] Section 6.19(2) requires this notice to be issued within three months of the claim being made.
[7] Section 6.19(5).16 May 2019 – QBE [A6 relevant insurer dispute].
Insurer’s decision making
Mr Brown has received a number of liability notices issued in respect of his statutory benefits claim:
(a) 16 May 2019[8] - QBE accepted liability to pay Mr Brown statutory benefits for the first 26 weeks after the accident.
(b) 4 August 2019[9] - NRMA accepted liability to pay Mr Brown statutory benefits for the first 26 weeks after the accident.
(c) 4 October 2019[10] - NRMA accepted liability for benefits after the first 26 weeks ‘whilst investigations are continuing’. NRMA advised that they accepted Mr Brown was not ‘most at fault’. NRMA was said to be investigating the nature of Mr Brown’s injuries and whether they fulfilled the criteria for minor injuries within the definition of section 1.4 of the MAI Act.
(d) 11 October 2019[11] - is in similar terms to the above, NRMA accepts liability to pay benefits while investigations into injury were continuing.
(e) 28 May 2020[12] - NRMA accepts liability on the basis Mr Brown had sustained non minor injuries and was not wholly or mostly at fault.
(f) 5 August 2021[13] - NRMA denied liability on the basis ‘the accident was caused by you when you drove your Audi from the right lane into the left lane, into the path of the Isuzu truck driven by Warren Cook, side swiping that vehicle. We deny that an unidentified vehicle caused the collision’.
[8] Identified as document A6 in the relevant insurer proceedings.
[9] Identified as document R2 in the insurer’s bundle in Mr Brown’s proceedings.
[10] Identified as document R3 in the insurer’s bundle in Mr Brown’s proceedings.
[11] Identified as document R4 in the insurer’s bundle in Mr Brown’s proceedings.
[12] Identified as document R5 in the insurer’s bundle in Mr Brown’s proceedings.
[13] Identified as document R16 in the insurer’s bundle in Mr Brown’s proceedings.
An internal review was conducted by NRMA of the 5 August 2021 decision and NRMA affirmed its revised liability decision on 14 September 2021[14]. The decision sets out the material NRMA considered including the report of Dr McIntosh and says:
“[42] The evidence before me indicates that you were travelling on the M1 in the northbound lane two of two. You attempted to merge into lane one and collided with the truck driven by Mr Cook. As a result of this collision, you rear-ended the Ute in front of you, driven by Mr Mumford. Your vehicle came to a halt against the guard rail on the right-hand side of the roadway”.
[14] The ‘Certificate of Determination – Internal Review’ is identified as document R20 in the insurer’s bundle of documents.
The dispute that is to be determined then is whether Mr Brown’s statutory benefits should cease. That requires consideration of sections 3.11(1)(a) and 3.28(1)(a). Section 3.11(1)(a) says:
“(1)An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if—
(a)the motor accident was caused wholly or mostly by the fault of the person, or
(b)the person’s only injuries resulting from the motor accident were minor injuries.
(2) 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 (as referred to in section 3.38) was greater than 61%”.
Section 3.28(1)(a) is in very similar terms but relates to treatment and care benefits.
The combined effect of sections 3.11(1)(a) and 3.28(1)(a) is that if Mr Brown’s accident was caused wholly or mostly by his fault, his entitlement to statutory benefits will cease. That dispute involves miscellaneous claims assessment matters in accordance with Schedule 2 clause 3(d), (e) and (n) of the MAI Act.
Relevant insurer provisions
Section 3.2 provides that statutory benefits are paid by the ‘relevant insurer’ and that is to be determined by considering the following provisions:
“(2)The relevant insurer is (subject to this section and section 3.3)—
(a) if the motor accident concerned involved only 1 motor vehicle with motor accident insurance cover—the insurer of the motor vehicle, or
(b)if the motor accident concerned involved more than 1 motor vehicle—the insurer of the at-fault motor vehicle, or
(c) in any other case—the Nominal Defendant.
Note— The Nominal Defendant will be the relevant insurer where the motor vehicle concerned was not insured or identified as referred to in Division 2.4.
…
(4) The insurer of the at-fault motor vehicle is the insurer who provides motor accident insurance cover to—
(a)the owner or driver of the motor vehicle whose fault in the use or operation of the vehicle caused the death or injury in respect of which the statutory benefits are payable, or
(b) if there is more than one such motor vehicle—the owner or driver of the motor vehicle who was most at fault.”
Section 3.3 provides for insurers to enter into arrangements ‘approved by the Authority’ to determine which is to be the relevant insurer and in the absence of any agreement about that a forum for the resolution of any dispute about which insurer is to be the relevant insurer. A dispute about which insurer is the relevant insurer is a miscellaneous claims assessment matter in accordance with Schedule 2, clause (3)(c) of the MAI Act.
REVIEW OF THE EVIDENCE
Police material
In the light of the assumptions made by the parties during the life of this claim, it is important to start with the police report, created by Senior Constable Michael Ridgeway (SC Ridgeway) and the version of the accident he has recorded as follows:[15]
“At about 5:50am on Tuesday the 26th of March 2019 all motor vehicles involved were travelling north bound upon the Ml Motorway Freemans Waterhole, when approximately 2km north from Palmers Road overpass, the traffic in lane 2 had came [sic] to a halt for unknown reasons. At this point an unknown motor vehicle has pulled from lane 2 into lane 1, driver 2 stated that he was travelling in lane 1, to avoid a collision he has applied his brakes in an attempt to avoid another collision, at this point VEH 2 offside has collided into the rear nearside of VEH 3. This impact has caused VEH 3 to be spun around and the nearside has collided into the rear of VEH 4. VEH 3 and 4 required towing from the scene. No person was injured. There are no other witness or the ID of VEH 1 is unknown.”
[15] The police report is document R13 to be found at page 155 of the insurer’s bundle.
Vehicle 1 is said to be an unknown vehicle, vehicle 2 is the truck driven by Mr Cook, vehicle 3 is the Audi driven by Mr Brown and vehicle 4 is the utility driven by Mr Mumford.
While the Ambulance Service attended and personnel spoke with Mr Brown, he was not transported to hospital. No other persons were injured. The accident occurred on the M1 Motorway between Sydney and Newcastle early in the morning shortly before peak hour. It appears, from his statement, that no other police attended other than SC Ridgeway.
QBE’s investigator, Quantumcorp took a statement from SC Ridgeway on 31 May 2019. He said he was responding to a callout following a triple zero call from a Mr Foster. He did not take a statement from Mr Foster.
Senior Constable Ridgeway said the accident occurred at about 5.53am and he arrived at 6.15. He took some photographs and took a statement from Mr Cook which he read to the investigator and which has been included in the statement (question 115).
The police officer says, when he arrived at the scene, Mr Brown was in his car and says (at question 110) “He was, more or less, suffering from a bit of shock. Didn’t know what actually happened. Same as Mr Mumford. He was a – didn’t know how it happened or why it happened all of a sudden”. He says (question 111) that he did not get a statement from Mr Brown or Mr Mumford because they could not tell him what caused the accident.
This is the statement read out to QBE’s investigator by the police officer:
“’Mr. Cook were you the driver of motor vehicle BP66PQ that was involved in a motor vehicle collision on the M1 Motorway, Freemans Waterhole on Tuesday, the 26th of March 2019?’ He wrote, ‘Yep’. I said, ‘Can you tell me what happened?’ He said to me, ‘I was travelling north on the M1 Motorway, Freemans Waterhole. I was travelling approximately 100 kilometres per hour. I was in the slow lane. I noticed a vehicle in front of – in front of me had stopped, an unknown vehicle had pulled into the slow lane. I tried to avoid a collision with the vehicle. As the vehicle had no speed vehicle clipped my work truck’. I said, ‘Okay. I’m going to ask you further questions about the accident. You do not have to say or do anything if you don’t want to. Anything you say or do I will record. This can be used in court. Do you understand that?’ He said, ‘Yes’. I said, ‘At the time were you injured?’ He said, ‘No’. I said, ‘Were any of your passengers injured?’ He said, ‘No’. And, I asked him, ‘Have you any alcohol before or after the accident?’ He said, ‘No’. I said, ‘Were you wearing a seatbelt?’ He said, ‘Yes’. I said, ‘You said your speed was at approximately 100 kilometres per hour?’ He said, ‘Yes’. ‘Is there anything else you can tell me about the accident?’ He said, ‘No. The vehicle that I clipped had left the scene of the accident’.
The investigator asked the police officer how the yellow Audi was involved because Mr Cook had only referred to an unknown vehicle that had pulled out in front of him and which he had clipped and which left the scene. The police officer said that he was not sure (question 116). He advised the investigator he thought the unknown vehicle was the cause of the accident ‘going off what Mr Cook has told me’ (questions 145-147).
Claim form
Mr Brown’s application for personal injury benefits was dated 17 April 2019[16]. In it, he describes his accident as follows:
“I was slowing for traffic ahead of me and was hit from behind and lost control of the vehicle. I slammed into the vehicle in front and then hit the guard rail.”
[16] Document R8 in the insurer’s bundle.
In the question asking him to provide details of all the vehicles involved in the accident he gave only the details of his own vehicle and said he was unsure of the registration number of the vehicle “most at fault”.
Emails from the claimant and his solicitor
Mr Brown sent an email on 6 August 2019 to NRMA in response to what appears to be a rejection of the claim for procedural reasons. Mr Brown provides the following additional details about the accident. These were given in the context of explaining why he could not identify the vehicle that hit him from behind as part of the “due inquiry and search” NRMA was asking him to undertake on behalf of the Nominal Defendant.
“I was hit from behind at very high speed when I was slowing to avoid traffic ahead on the freeway between Newcastle and Sydney. I did not see the vehicle approaching from behind because I was concentrating on the traffic ahead of me. Even if I did notice it in my rear-view mirror, it would have been highly unlikely that I would have been able to recognize the vehicle because it was approximately 6am in the morning and was dark. All the vehicles travelling on the freeway at that time had their headlights on, so all I would [have] seen was a pair of headlights rapidly approaching me as I was slowing for traffic ahead. But thankfully, I didn't see the lights of the car, and the prevailing circumstances also rendered it virtually impossible for me to identify the vehicle.
When I was hit from behind, the impact was so great that my car was lifted, twisted sideways and at a considerably higher speed than I was travelling before being hit. I had for all intents and purposes lost control of the vehicle at this time. My car slid along the surface freeway in almost perpendicular fashion, with the passenger (left) side now being the leading edge of the vehicle and the driver’s side where I was sitting facing the direction from which I had been travelling. Once again, the circumstances of the MVA rendered it virtually impossible for me to see the vehicle that hit me from behind because it had now passed behind my vehicle and I was facing in the complete opposite direction. After sliding out control for approximately 40 to 50 metres, my car slammed into the rear of the car in front of me, which had come to complete standstill in the fast lane, and which I understand is insured by NRMA.
The force and angle of the impact caused the passenger door of my car to be ripped clean off, almost like a passenger jet door being ripped off a plane in the movies, seemingly a fraction of a second before my vehicle fully slammed into the rear of the vehicle in front at an almost perpendicular angle. The impact point on my vehicle was essentially the width of the passenger door and, because of the angle of the impact and the speed at which my vehicle was still travelling, my car was pinballed off the car I had just hit, spun back toward the normal direction of travel on the freeway and slammed into the guard rail adjacent to the fast lane where it finally came to a halt. Once again, given the horrific circumstances I found myself in - the chaos caused by broken glass flying everywhere inside my car, my front seat view of the passenger door, my fears for the safety of my dog Scouty, who was with me in the car at the time (he was actually ejected from the vehicle via the now open passenger door at the time of the main impact. But luckily, I had already grabbed his collar at some point while we were sliding toward the car in front and I was able to keep hold him as he almost fully in the vehicle) - I had absolutely no sight of or ability to identify the vehicle that had hit me from behind and caused the accident.
My dog and I were stuck in the vehicle for approximately 45 minutes after the accident occurred. I was unable to exit the car because the driver's door was hard up against the guard rail and the now permanently open passenger door was only a metre of so from the outside edge of the fast lane on the freeway, upon which cars were still travelling past at very high speed. The police (Senior Constable Ridgeway, Lake Macquarie Highway Patrol) arrived at the scene about 15-20 minutes after the accident and the ambulance soon thereafter. I was advised by S/C Ridgeway that I had to wait in the car with my dog until the RTA had stopped the traffic on the freeway. I was breath-tested by the officer while still in the vehicle, as well as having my pulse and blood pressure checked by the ambulance officers. During this period of waiting, S/C Ridgeway asked me some questions about how the accident happened and what speed I was doing at the time of impact. I told him that I was doing approximately 80-90km/h and still slowing down before I was hit from behind by an unidentified vehicle, which seemed to surprise him. He went around to the back of my car to have another look and then came and apologised to me because he had previously assumed that I had been the sole cause of the accident. I also recall him saying that there wasn't any damaged vehicle in proximity to the crash site other than my car and the car that I hit after being hit myself. It was concluded that the car that caused the accident had left the scene.
Once freed from the wrecked car, I was instructed by S/C Ridgeway to sit on the opposite side of the freeway adjacent to the slow lane and to wait until the two vehicles had been cleared from the freeway and was opened to traffic again. During this second period of waiting, the driver of the vehicle that I was forced into came over to me and asked if I was alright. We exchanged licence and contact details and I asked him if he had seen the car that hit me. He responded in the negative and said that he thought that the accident only involved my car hitting his car from behind.
As far as I knew, there was nobody else remaining at the scene who witnessed the accident.”
The claimant had received assistance from Mr Doug Williams of Slater and Gordon with two claims for damages he has made (against the Nominal Defendant and QBE’s insured)[17]. In an email from Mr Williams to NRMA dated 7 September 2021[18] concerning the decision made by NRMA to terminate Mr Brown’s statutory benefits, Mr Williams says:
“In any event the insurer appears to lack insight into the nature of the claimant’s allegations in terms of the mechanism of the accident.
Whilst my client initially provided a history of being struck from behind by an unknown vehicle, your file should include reference to other discussions has had with the police and your claims officer with carriage of the matter.
In those discussions my client indicated that the vehicle that struck him was no longer unidentified. Instead, my client accepts that he was struck on the back left corner by a truck (driven by Warren Cook) in the slow lane. At the time of impact my client maintains that he remained in the fast last [sic].
The reference to an unidentified vehicle comes from a statement given by the truck driver to the police. In that statement the truck driver refers to ‘clipping’ an unidentified vehicle which left the scene.
My client maintains that it was the unidentified vehicle that left the scene (described by the police as vehicle 1) that caused the truck in the slow lane to collide with the left rear of his vehicle.”
[17] Mr Williams had been contacted and advised the Commission that whilst he may have provided assistance to Mr Brown in respect of the statutory benefits claim he was not appearing for him or providing assistance in respect of the disputes that were referred to the Commission. At the time of the hearing, Mr Williams had ceased to act for Mr Brown in relation to the common law claim.
[18] Document R19 in the insurer’s bundle. Not all of the points have been included but only those that are relevant to the matters I have to determine.
Claimant’s statements
Mr Brown has not given oral evidence formally at any hearing, but he has given many details about the accident and its aftermath at the various teleconferences.
He did not lodge a statement when he first referred his claim to the Commission and said he had not provided a statement to his solicitors in his common law claim. The insurer’s investigators have not obtained a statement from him.
At the first preliminary conference, in answer to a question from the insurer, he gave an oral version of how he said the accident happened. This was which was restated in the report and which Mr Brown was asked to confirm and which is extracted below:
38. “20. I asked Mr Brown how he says the accident happened and he said:
(a)I was coming along the freeway in the fast lane – I came around a bend and it was downhill a little bit.
(b)There was traffic stopped in the fast lane – four vehicles in front of me.
(c)The lead vehicle (the first vehicle) was a van with left hand indicator on, it looked like it was trying to turn into a layby or where there is an emergency phone.
(d)I changed out of top gear and was slowing down behind the line of four cars.
(e)Suddenly I was hit from behind.
(f)I was lifted and spun sideways, the door was ripped off.
(g)I ended up colliding with the black holden ute in front of my vehicle and then the guard rail
(h)I was hit by a truck, Mr Cook’s truck but it wasn’t until four months later that I got the police report.
(i)Mr Cook admitted to clipping the unidentified vehicle. There was nothing he did wrong.
(j)It is not the case, at no point do I recall crossing into the slow lane.
…
39. 22. Mr Brown has said that the vehicle that hit him from behind on the corner of his car was Mr Cook’s vehicle. As I understand it, what he was saying was that there was no other vehicle that hit him from behind. He says that the vehicle that was moving from the fast lane into the slow lane was the vehicle that caused the accident.”
In compliance with directions, Mr Brown then provided a typed statement. While it is not signed or dated, the material within it is generally the same as the information provided during the teleconferences and should be accepted despite these irregularities.
Mr Brown says:
(a) before the accident he was travelling in the fast lane at 110km with his car on cruise control (paragraph 1);
(b) it was raining lightly, traffic was heavy and it was dark (paragraph 2);
(c) as he came round a sweeping bend there were four vehicles “at a dead stop” in the fast lane so he disengaged his cruise control and lightly applied the brakes and “gradually reduced the speed ... to give myself plenty of room to stop safely before the line of traffic’ stopped in front of him.” (paragraph 4);
(d) he could see a vehicle up ahead in the fast lane with its indicator on but diverted his attention to the car in front to ensure he avoided a collision (paragraph 5);
(e) when he was 50 – 60 metres from the vehicle in front of him:
“I had come to a slow roll [when] my car was hit from behind by something with such a tremendous force that the rear of the vehicle was picked up and spun sideways in an instant. My hands were dislodged from the steering wheel and I was thrown up and out of my seat hitting my head … causing me to lose complete control of the vehicle” (paragraph 6);
(f) his car slid along the motorway at a greater speed than it was travelling before the impact (paragraph 7);
(g) he grabbed his dog, sitting on the seat beside him, the passenger door was ripped off and he hit the vehicle in front almost square on, “like a reverse t-bone accident” (paragraph 8);
(h) after colliding with the rear of [Mr Mumford’s car] he bounced off the back and kept moving along the freeway until his car came to a halt with the driver’s door up against the guard rail (paragraphs 10 and 11);
(i) he was disoriented, not sure where he was, dazed and confused (paragraph 12);
(j) he remembers speaking with the police and telling them he was travelling in excess of 120km but that he was not sure “because everything had happened so quickly”. Mr Brown says the police officer castigated him for his speed but then Mr Brown told the Senior Constable that he had been hit from behind by an unidentified vehicle. The police officer apparently looked at the damage and apologised to the claimant. Mr Brown says the police officer the remarked that “it was clear to him that it [the damage to the rear passenger side of the car] was caused by another vehicle before my vehicle slammed into the rear of the vehicle in front of me” (paragraph 16);
(k) Mr Brown provides great detail about what happened to his beloved dog, the attendance of the ambulance officers and the tow truck driver. He says that [Mr Mumford] apologised for assuming he was at fault;
Finally, Mr Brown says:
“[33] I was never told at any point in time which vehicle crossed into my lane and hit me from behind to cause the accident, nor did anyone tell me that the driver (Mr Cook) had stopped after the accident occurred and had given a statement to the officer in charge. I had actually thought that the driver of the vehicle that crossed into my lane and hit me from behind had failed to stop and left the scene of the accident.
43. [34] I only found out that it was the truck driven by Mr Cook that him [hit] my vehicle from behind when he took action to avoid a vehicle which had pulled out in front of him and crossed into my lane when QBE Insurance sent me a copy of the police report in August 2019, some five months after the accident had occurred. And, in this report, the police had cleared Mr Cook of being at fault on the basis that it was the unidentified vehicle that pulled out in front of him from the fast lane to the slow lane that caused the accident by forcing Mr Cook to take avoidance action which caused him to cross into my lane and collide with my vehicle.
44. [35] There has never been any suggestion by the NSW police that I crossed from the fast lane into the slow lane in front of Mr Cook’s vehicle as NRMA now contend.”
In the final teleconference on 7 February 2022, Mr Brown maintained that an unidentified vehicle caused his accident but that it was “not a vehicle that I saw”. He said he did not see that vehicle at all because he was focussed on avoiding a collision with the vehicle in front of him. He said the last thing he remembered was “being hit from behind”. He also confirmed that he was not hit square on from behind but at the back left hand side of his car.
Mr Cook’s evidence
Incident report form
Mr Cook provided an incident report to his employer (as he was driving to work at the time of the accident). It is not dated but provides a description of the accident as follows:
“Whilst travelling to worksite at Heddon Greta a vehicle changed lanes (from fast lane to the slow lane) at approximate 20 kmph. Due to the fast lane traffic being stopped. I was travelling at approximately 100 kph. I tried to drive around the slow vehicle by using the shoulder to driver around the vehicle. We side swiped each other. Our vehicle sustained damage to the right-hand door and tray. The police attended the accident, took details and breath tested all drivers.”
Mr Cook drew a diagram as follows:
[Image unable to be replicated]
He reported side swipe damage and no injuries to any person.
He notes further on in the form that it was a yellow Audi that pulled out in front of the truck and he provides some details of it and a mobile phone number for the driver.
Mr Cook’s statement to investigators (1)
Mr Cook provided a statement to QBE’s investigators, Quantumcorp. The statement is dated 14 May 2019[19]. His statement details his familiarity with the vehicle and the condition of the vehicle. He says he woke up a 4.30am, collected Mr Ayshford and that at the time of the accident it was fine, the road was dry but it was dark.
[19] Page 80, insurer’s bundle of documents.
Mr Cook says the speed limit was 110km and the accident occurred after a left-hand bend and on a straight stretch of the motorway.
He says that at the time of the collision the traffic in the fast lane was heavy as it had come to a stop. He did not know why. He says:
“[34] I was on the straight section of road for 20 to 30 seconds before the crash occurred. I started driving past the line of traffic at 100 km/h when the third to last car in the lane suddenly cut in front of me, from the right lane into the left lane.
[35] A yellow Audi TT pulled out from the right lane within a couple of metres in front of my truck. The Audi was travelling at approximately 20 km/h and I was driving the truck at approximately 100 km/h. I swerved to the left and tried to drive around the slow vehicle by directing the truck into the shoulder on the left side of the motor way. However, I was not able to get around the car in time, and the vehicles struck each other around the centre of the left lane.
[36] I was able to slow the truck just prior to the collision, so I would have impacted the car at around 80 km/h. The sound caused by the collision was a loud bang. The collision took off the right-hand indicator assembly of the truck, and the tray of the truck hit the vehicle, which forced the tiedown bar on the tray up.”
Mr Cook says the Audi’s lights were on but there was no indicator. He goes on to say:
“[39] As a result of the impact, the right side of the truck impacted the left rear of the Audi. The front corner of the truck’s tray hit into above the left rear tyre of the Audi”.
Mr Cook then describes how the Audi bounded off the truck into the fast lane and hit the back of a black ute eventually coming to rest against the railing on the right-hand side of the motorway. Mr Cook says at [45] that the Audi travelled for about six meters knocked from the left lane into the railing on the right-hand side. He said he spoke with the Audi driver briefly. Mr Cook blames the stopped traffic and the Audi pulling out in front of him for causing the accident.
Mr Cook has provided a marked-up photograph as follows:
[Image unable to be replicated]
Mr Cook’s statement to investigators (2)
NRMA obtained a further statement from Mr Cook dealing with the issue of the unidentified vehicle. A signed copy of that statement is dated 27 December 2012.[20]
[20] This document is AD1 in the relevant insurer file.
Mr Cook re-read his original statement to Quantumcorp and confirmed the accuracy of its contents. He confirmed that the reference in paragraph 34 to a car suddenly coming out in front of him from the right lane into the left lane was a reference to the claimant’s yellow Audi (paragraphs 4 and 5).
Mr Cook explains:
“There were three vehicles that pulled into the slow lane in front of me. The first was the Audi TT. I was pulling the truck to the left to try and avoid a collision. I heard a bang and looked straight ahead. I saw the two other vehicles pull into the slow lane in front of my truck and proceed to drive in a northerly direction. One of the vehicles was a black/brown sedan. That vehicle stopped at the side of the road and I saw a person get out of the driver’s seat and walk around the car. I formed the view that the driver was checking for damage.”
He then says the black/brown sedan was the ‘unknown vehicle’ he referred to in the police statement. Mr Cook says after he signed his statement, SC Ridgeway showed him the damage to the right side of the truck and pointed out yellow paint and he says ‘it was only then that I realised that the vehicle which had sideswiped me was the Audi TT’.
Mr Cook says he did not witness a collision between the black/brown sedan and the Audi but suspected it had happened because of the driver’s actions in getting out of the black/brown sedan and walking around it looking for damage.
Mr Cook says there was only one impact with his truck, that the NSW Police version of events is wrong and that the vehicle that had merged into his lane was the Audi.
Mr Ayshford’s evidence
A separate incident report form was completed by Matty Ayshford the passenger in Mr Cook’s truck. He says:
“On our way to work with Warren Cook, he was driving I was the passenger.
Driving along the M1. I was asleep in the passenger seat, Warren Cook was driving the truck. I was awaken by Warren Cook’s scream and there was a vehicle crossing into the slow lane. Warren swerved and clipped the vehicle and we nearly lost control. Warren corrected the vehicle and pulled over.
As I was asleep, I’m not quite sure. All I seen was a vehicle pulling out of the fast lane into the slow lane right in front of us.”
In his statement Quantumcorp (at 12), Mr Ayshford says he was asleep at the time, that the roadway was well lit by other cars and there was a line of traffic stopped in the right lane.
He was woken by Mr Cook’s scream. He said (at 21) he opened his eyes and “saw a vehicle pulling from the fast lane into the slow lane right in front of us”. He opened his eyes as the truck was impacting the vehicle. He said Mr Cook swerved to the left but clipped the Audi “as it pulled out in front of us” and Mr Cook nearly lost control of the truck (22) and pulled up 150 – 200 metres down the road (23).
Mr Ayshford notes the damage to the two vehicles saying (at 26) “the truck sustained right hand swipe damage”.
Mr Ayshford details his interactions with Mr Brown noting he appeared to be in shock, sat in his car for about 45 minutes and at [34] says:
“The driver told me he did not even know what happened. Nobody admitted fault in the accident. The driver gave me his details including phone number.”
Statement of Mr Mumford
Mr Mumford was also interviewed by QBE’s investigator, on 30 May 2019. He was driving his black utility from his home to work along the M1.
He says the weather was fine, the road was dry and it was dark although the cars had their headlights on.
He says traffic was normal until he got past the Palmers Road onramp where he came upon vehicles stopped in the right lane. There was a large four-wheel drive in front of him so he could not see what else was up front and he was not sure if there was anything behind him (paragraphs 21-22).
He said (paragraph 25) he was driving at about 110km when the vehicle in front braked sharply. He stopped and then:
71.“I recall looking into my rear-view mirror and seeing headlights coming towards me. I went to turn on my hazard light to notify oncoming traffic that my vehicle was stopped, but before I could do so I was hit from behind. I was stopped very briefly before the collision occurred.”
He says there were vehicles passing (in the slow lane) and was not sure if the yellow Audi had stopped behind him. He felt a “big smack” which was a “very hard force” but he did not hit the vehicle in front because it had started moving.
He describes the significant damage to the Audi and the damage to his own car and notes the work vehicle [Mr Cook’s truck] had its right-side indicator knocked off and there was a “ding” in the tray.
He says at paragraph 39 that after about five minutes he went over to Mr Brown who apologised and said, “he was stopped and … had been hit from behind”.
Mr Mumford expresses a view as to how the accident happened. But he could not see the truck or Mr Brown’s car because it was dark. He spoke with the police, but no statement was taken from him.
The report of Dr McIntosh
Dr Andrew McIntosh has a provided a report to NRMA’s solicitors[21]. At page 5 Dr McIntosh says he has been asked to prepare a report commenting on:
[21] The report is identified as R14 in the Nominal Defendant’s bundle and is dated 4 June 2021.
(a) whether the damage to the vehicles is consistent with the claimant’s allegation that he was rear-ended by an unidentified vehicle;
(b) whether the damage to the claimant’s vehicle is consistent with a collision with any vehicle other than the Isuzu truck or the Holden Utility, and
(c) whether there is any physical evidence of an unidentified vehicle being involved in the accident.
Dr McIntosh did not have photographs of the truck and the damage to it.
Dr McIntosh was asked to make a number of assumptions including that the claimant was run into from the rear and that an unidentified vehicle pulled out in front of Mr Cook’s truck.
At paragraph 8 on page 28 he notes that there is some lack of clarity in particular with regards to the involvement of the unidentified vehicle.
While he did not find (at page 20) damage to the rear of Mr Brown’s Audi that is consistent with a “rear end collision”, he does identify substantial damage to the rear nearside wheel arch.
In the opinion section of his report (section 6, page 36) he says the damage to the claimant’s vehicle is consistent with a side impact or sideswipe with Mr Cook’s vehicle and a side impact with Mr Mumford’s vehicle. He then says (at paragraphs 37 and 38) that the damage to the claimant’s vehicle is consistent with an impact with Mr Cook’s truck, Mr Mumford’s utility and the guardrail on the right-hand side of the Motorway.
His conclusions at page 39 repeat this and express the view there is no physical evidence of an unidentified vehicle (coming from behind) being involved.
CONSIDERATION OF THE ISSUES
There were two problems with the evidence in this matter. The first was the assumption made early on by the Nominal Defendant and QBE that there was an unidentified vehicle. Both accepted what was recorded by the police officer were the facts without checking and testing those facts by for example, asking Mr Cook at an early stage to reconcile the two statements he made and explain the presence of the unidentified vehicle in one and the Audi in the other.
The second issue arose due to the assumption made by the insurers and Dr McIntosh that Mr Brown’s description in the claim form of being ‘hit from behind’ equated to a square-on front end to rear end collision and that the vehicle that hit him from behind was an unidentified vehicle that left the scene. This assumption was not clarified by the insurers until 5 September 2021 when Mr Brown, through his solicitor accepted he was hit by Mr Cook’s vehicle (the previously unidentified vehicle) and that this impact was to the back of his car at the left.
Is the evidence of Mr Brown and Mr Cook reliable evidence?
Both Mr Ayshford and the attending police officer record that the claimant was shocked and did not know what had happened or how the accident had occurred. Mr Mumford says Mr Brown told him he was stopped and hit from behind.
Mr Brown thought, at the time he lodged his claim form that an unidentified vehicle had hit him from behind. He says it was only after the insurer provided him with a copy of the police report did he realise that he had been hit by Mr Cook’s vehicle at the back passenger side of his car. And he now relies on the police report to assert that it was an unidentified vehicle pulling out in front of Mr Cook’s vehicle that caused the accident.
Mr Brown does not, in my view have a clear and independent understanding of the mechanism of the accident in particular the collision with Mr Cook’s truck. I am not of the view Mr Brown is attempting to mislead the Commission but that he is simply unclear as to what did happen and is reconstructing what he thinks happened based on what others have said and reported. For example, Mr Brown is of the view that an unidentified vehicle cut in front of Mr Cook’s truck, and it was this vehicle that caused the accident even though he says he never saw that vehicle. He is relying on the evidence and opinions of others.
For the above reasons, in my view the claimant’s evidence is unreliable and I need to look to other evidence upon which to base my findings.
Senior Constable Ridgeway was not present at the time of the accident and did not witness the accident. He therefore cannot give evidence as to precisely how this accident occurred. His report is based on a single conversation with Mr Cook and no other witnesses. His evidence is in the form of opinion evidence. His report is based on his acceptance that there was an unidentified vehicle that pulled out in front of Mr Cook’s truck. While he allegedly tested Mr Cook’s assumption that the black/brown vehicle was involved by showing Mr Cook the side of his vehicle and the yellow paint, he did not then go on to record any amendment to the statement in his notebook or include this information in his report.
I accept he was doing his best to recall events when his statement was taken three months after the accident, but SC Ridgeway could not explain at that time how Mr Brown’s vehicle came to be involved when Mr Cook has referred to clipping the unidentified vehicle which had departed. I do not therefore accept his evidence as to the cause of this accident.
Mr Cook’s first statement to the investigator and his incident report form identify Mr Brown’s car as the car that pulled out in front of him and mentioned no other vehicle in particular no ‘unidentified’ vehicle. That evidence in particular was completely inconsistent with the police report.
Mr Cook’s second statement explains the sequence of events in terms of giving his statement to the police and the action of the police in then showing him the damage and the presence of the yellow paint and how he came to understand that his initial assumption (about the black/brown unidentified vehicle) was incorrect.
When all of Mr Cook’s evidence is considered, it provides a relatively consistent version of events. It also provides a plausible explanation for the inconsistency between his statement to the police and his first statement to the investigator.
His evidence now is that there was no unidentified vehicle involved in this accident and that the vehicle that pulled out in front of him was Mr Brown’s. He has been clear that there was only one impact with his truck and the vehicle that impacted his truck was Mr Brown’s.
Should I accept Mr Cook’s version of events?
Mr Ayshford’s evidence supports that of Mr Cook’s in terms of the vehicle pulling out in front of them and which vehicle it was and that Mr Cook took steps to avoid the vehicle.
Mr Ayshford and Mr Mumford support Mr Cook’s evidence in terms of the damage done to his truck.
Mr Mumford did not see what Mr Cook could see (the black/brown and other vehicles that may have pulled out of the fast lane) because Mr Cook was in the slow lane and there was a large four-wheel drive, in front of Mr Mumford blocking his view.
I accept the evidence of Mr Ayshford and Mr Mumford. While Mr Ayshford may have been a work colleague of Mr Cook’s he would have no reason to be untruthful. Neither he nor Mr Cook were in any trouble with the police and the damage done to the vehicle was the subject of an insurance claim made by their employer.
For all of the above reasons I accept the version of events leading up to the accident given by Mr Cook.
What caused this accident?
I am not satisfied that there was any unidentified vehicle involved in causing this accident. I accept Mr Cook’s evidence that the unidentified vehicle he was talking about when he gave his statement to the police was the black/brown sedan he assumed had sideswiped his vehicle. It is likely this vehicle is one of the vehicles ahead of Mr Brown’s Audi that moved from the fast lane into the slow lane. Alternatively, it could have been travelling behind Mr Brown and was one of the vehicles Mr Brown says was moving past him in the fast lane after the first collision when his vehicle was out of control and sliding along the road way perpendicular to the traffic.
I accept the evidence of Mr Brown and Mr Ayshford that Mr Brown’s Audi pulled out directly into the path of the truck and that Mr Cook took steps to avoid it.
Mr Cook says there was only one impact with his vehicle, Mr Brown says there was only one impact at the back of his car. Their evidence supports there being a collision between the two of them and no other vehicle (before Mr Brown lost control of the car and he hit Mr Mumford and then the guard-rail). This finding is supported by the evidence of Dr McIntosh and his analysis of the damage to Mr Brown’s vehicle.
There is no dispute that after Mr Cook and Mr Brown collided Mr Brown lost control of his Audi and collided with Mr Mumford’s vehicle and then the guard rail. The real issue is what caused Mr Brown’s car to collide with Mr Cook’s truck? If Mr Brown was driving wholly in his lane, and Mr Cook was driving wholly in his lane then it is hard to understand how a collision between them could have occurred. One of them must have been moving or merging into the other lane for a collision to occur.
The evidence of Dr McIntosh does not assist in determining which of the two drivers was moving or merging because his primary focus was on ascertaining whether there was an unidentified vehicle or not.
Mr Mumford’s evidence does not assist as he did not see the first collision that is the collision between Mr Cook and Mr Brown.
In the email communication from his solicitor to the insurer, Mr Williams states “… my client accepts that he was struck on the back left corner by a truck (driven by Warren Cook) in the slow lane. At the time of impact my client maintains that he remained in the fast last [sic].” Mr Brown said at the first teleconference that he did not recall moving from the fast lane to the slow lane.
Mr Cook says in his first statement and his incident report that Mr Brown’s Audi moved from the fast lane into the slow lane directly in front of him. Mr Cook says in his second statement that there were three vehicles that pulled out of the fast lane into the slow lane, the first being Mr Brown’s. Mr Ayshford was asleep immediately before the accident, but woke up when Mr Cook screamed and reports seeing Mr Brown’s car moving from the fast lane into the slow lane. Both Mr Cook and Mr Ayshford say that Mr Cook steered the truck into the breakdown lane on the left in an attempt to avoid a collision.
It is my view more plausible for someone in Mr Cook’s situation to swerve left and attempt to go around a vehicle or vehicles moving suddenly into his lane than swerve right. If Mr Cook moved into Mr Brown’s lane that would be more consistent with avoiding a hazard coming from the left rather than the right.
I am not satisfied that Mr Cook at any stage left his lane and moved into the fast lane and side-swiped Mr Brown. I am satisfied that Mr Brown moved from the fast lane into the slow lane and side-swiped Mr Cook as Mr Cook was attempting to avoid a collision by moving towards the breakdown lane.
What happened next is not in issue, Mr Cook lost control of his car, it was propelled to the right and impacted Mr Mumford’s utility and then the guardrail. Dr McIntosh, when considering the reports of damage and the evidence between Mr Cook’s truck and Mr Brown’s Audi says at [34] in his report that the initial collision caused Mr Brown’s vehicle to rotate clockwise following which there were the two later impacts with Mr Mumford’s vehicle and then the guardrail. Dr Mcintosh’s report is consistent with Mr Cook’s explanation of the accident and Mr Brown’s evidence of everything that happened after that first collision.
Is Mr Brown wholly or mostly at fault?
I have found that it was Mr Brown who moved from the fast lane into the slow lane and he did so with insufficient time and room to complete that manoeuvre safely as a result he side-swiped Mr Cook’s truck. If he had remained in his lane and waited for the traffic stopped in his lane to clear, this accident would likely not have happened. If he had kept a proper lookout and checked carefully to see if the slow lane was clear, before merging this accident is also unlikely to have occurred.
Mr Cook observed that Mr Brown did not activate his indicator before moving into his lane.
In my view the cause of this accident was the merging of Mr Brown from the fast (right hand) lane of the Motorway without warning into the slow lane. This caused Mr Cook to swerve to the left and a side-swipe collision to occur which then caused Mr Brown to lose control of his car and spin impacting Mr Mumford’s utility and then the guardrail.
In my view the accident was caused wholly by the fault of Mr Brown.
While it has never been argued by Mr Brown, it is possible that Mr Cook may have contributed to the accident by, for example, failing to slow down when he saw the vehicles in the right lane stationary up ahead in case those vehicles attempted to merge into the slow lane. Even if I was to make a finding that this occurred and Mr Cook was at fault, I would not be satisfied that his culpability was substantially greater than Mr Brown’s and I would be unable to make a finding that his contributory negligence should be less than 61%. I would, in those circumstances, therefore have found that Mr Brown was mostly at fault for causing his accident.
CONCLUSION
It follows from the above that the accident on 26 March 2019 involving Mr Brown’s Audi was caused wholly or mostly by the fault of Mr Brown.
In accordance with sections 3.11(1)(a) and 3.28(1)(a) he is not entitled to benefits beyond the first 26 weeks after the accident.
While Mr Brown has had the assistance of lawyers from time to time in his two claims, those lawyers have not been involved in this dispute therefore I will not allow any legal costs in this matter.
1
0
0