Delfante v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Delfante v Allianz Australia Insurance Limited [2023] NSWPIC 227
Claimant:	Dhaliz Delfante
insurer:	Allianz Australia Insurance Limited
Member:	Elizabeth Medland
DATE OF DECISION:	10 May 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act2017; assessment of claim for damages; liability and quantum of damages in dispute; claimant the driver of sedan that was involved in a collision with an oversized truck on North Rocks Road, Carlingford NSW; claimant alleged insured truck overtook her on the right and swerved into her vehicle travelling in lane one of two; insured driver alleged the claimant “undertook” his vehicle on the left; consideration of expert evidence of traffic engineer; alternative argument made that the accident constitutes a “no-fault” accident within the meaning of section 5.1; consideration of Melenewycz v Whitfield; issues of credit; Held – the insured did not breach his duty of care to the claimant; insured’s version of events more plausible; claimant found to be an unreliable witness; alternative “no-fault” accident argument found to be misconceived; the claimant has no entitlement to damages.
determinations made:	CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. On the issue of liability for the claim, Allianz’s insured owed a duty of care to the claimant but did not breach that duty of care. 2. The claimant is not entitled to an award of damages. 3. The amount of the claimant’s costs assessed in the matter is $0.

STATEMENT OF REASONS

INTRODUCTION

Ms Dhaliz Delfante (the claimant) is a 70 year old female who suffered injury as a result of a motor vehicle accident occurring on 11 May 2019. The motor accident occurred on North Rocks Road in the Sydney NSW suburb of Carlingford, when the vehicle the claimant was driving was involved in a collision with an oversized truck insured by Allianz (the insurer).
The claimant subsequently lodged an application for common law damages with the insurer. The insurer denied liability on or around 18 February 2022, on the basis of ongoing investigations.
A final liability notice was issued by the insurer dated 23 June 2022 that formally denied liability.
An application was lodged with the Personal Injury Commission (Commission) on

5 May 2022 seeking assessment of damages and liability. The matter has been allocated to me for assessment.
I held a teleconference with the parties on 27 June 2022 and an assessment conference date was given of 4 October 2022. Directions were made in respect of the lodgement of further evidence and submissions.
The insurer thereafter served an expert liability report from a traffic engineer, Mr William Keramidas. Whilst the report was lodged by the date I set for the service of evidence, the expert report had not been previously foreshadowed. Therefore, the claimant’s counsel submitted that the report had taken the claimant by surprise.
In order to afford due procedural fairness, a further assessment conference date was set. This was to allow the claimant to respond to the expert report and also to make submissions on an alternative liability argument based on the no-fault provisions of the Motor Accident Injuries Act2017 (MAI Act). In addition, it was indicated that the claimant wished to have Mr Keramidas made available for questioning.
Whilst the matter was stood over generally, the insured driver was present at the original assessment conference. Concerns were raised that due to his fragile emotional state in respect of the accident, it would be best if he were to give evidence on the day given that his presence could not be guaranteed at a further assessment conference. I agreed to proceed on such basis.
The day before the next scheduled assessment conference of 16 December 2022, I was advised that the claimant was unwell. Accordingly, a further assessment conference date was eventually set of 11 April 2023.
The claimant gave evidence at the assessment conference of 11 April 2023 and oral submissions were given on behalf of both parties. In addition, Mr Keramidas was questioned by Counsel for the claimant.
Both assessment conferences proceeded by way of VideoLink utilising Microsoft Teams.

DOCUMENTS CONSIDERED

The parties have lodged complete bundles of documents relied upon. I have considered such documents and any other additional documents submitted by the parties.

SUMMARY OF EVIDENCE

The accident occurred on North Rocks Road, Carlingford NSW at approximately 3.00pm on Saturday 11 May 2019. The subject roadway has four lanes with two lanes travelling in opposite directions. There is no median strip dividing the traffic travelling in each direction, with only a broken line present to divide the traffic.
The claimant was driving a small 1999 red Toyota Starlet sedan. There were no passengers. Mr Grant Woodham (the insured driver) was driving a white 2017 Kenworth 6106 truck, towing a trailer. The truck was carrying a large load at the time of the accident and displayed “over sized” signs and flashing lights.

NSW Police evidence

A copy of the NSW Police file has been obtained and is before me. The narrative contained with the “COPS” report is as follows (with some details omitted by the NSW Police):
“At the stated time and date V2 was travelling towards Northmead in lane 2 of 2 on North Rocks Road, North Rocks. At the same time V1 was also travelling towards Northmead in lane 1 of 2 of North Rocks Road, North Rocks. At a point near the intersection of Farnell Avenue the offside of V1 and the nearside of V2 have collided resulting in V1 veering to the left and the front endo f V1 collided heavily with a power pole….
A version was obtained from V2. He returned a negative result to a roadside breath test at the scene. He was not subjected to blood and urine testing based on the initial information available to police that D1’s injuries were not life threatening.
…”
The report confirms that the Crash Investigation Unit were contacted by declined to attend but gave advise to regarding the investigation. Crime scene examiners attended and police were on the scene for approximately seven hours.
The report goes on to state that the Heavy Vehicle Compliance Taskforce were involved with a Senior Constable from the unit attending the scene who examined the insured truck. Such investigations culminated in a conclusion that the truck was compliant with regard to speed and signage. The report goes on to state:
“…as the truck was wider than 2.4 metres and had the required signage/lights and standard certification, it was permitted to occupy two lanes at the time of the collision. They further advised that there is no specific law that would prevent V2 from undertaking the truck but that it would be considered a very dangerous practice and against common sense.
It was also advised that given the size of the load on the truck at the time of this collision it would have a very slow rate of acceleration. This does not support the assertion of the listed D2 that the truck accelerated and overtook V2.”

Claimant’s version of events
Version to police – 12 May 2019

The insurer caused for a factual investigation to be undertaken by M&A Investigations. The investigator conducted an interview with Senior Constable Barnes on

3 March 2022. The record of interview includes the following
“Police spoke briefly with Delfante by phone. She said that she remember the collision and events leading up to it. Communication with her was difficult due to her heavy accent and the effects of pain medication. She is on Fentanyl. But, basically she said that she was in lane one and the truck was in lane two. She said the truck drifted into her lane and that’s what caused the collision.”

Version to police (notebook statement) – 15 June 2019.

The notebook statement of the claimant confirms that she was headed west on North Rocks Road and she states she was travelling 50-60kmph. The statement includes the following version of events of the claimant:
“I had been shopping at Carlingford Court. I exited via the main entrance and exit. I turned right to head towards Carlingford. I turned right onto Pennant Hills Road and then left onto North Rocks Road. I drove along North Rocks Road in the left of the two westbound lanes. I always drive in the left lane in such situations because my little 1.2 litre car is slower than other cars. Traffic was fairly light. It was a fine day. The sun had begun to enter dusk. It was very windy. The road was totally dry. I looked in my rear vision mirror and saw a truck around 5-6 car lengths behind me in my lane. There was another truck in the right hand of the two westbound lanes. It was travelling beside the truck in my lane. The two trucks appeared to be from the same company because the [sic] looked the same. The truck in the right lane passed me near the service station. Then the truck behind me moved into the right lane and began to pass me on my right. As it neared me, I sound my horn because it was very close. The front left tyre of the truck hit my driver’s door. I was terrified. The truck was pushing me towards the kerb. I saw the truck’s front left tyre go past me, then one of the truck’s tyres went up onto my bonnet. I saw the windscreen of my car shatter. I was repeatedly sounding the horn. I remember starting to pray inside myself. The next thing I knew, I lost consciousness. The next thing I remember is flashes of images of the people’s faces. Then I knew I was in the ambulance. Then I woke up in hospital.”

Claim form – 21 May 2019

The claimant initially lodged an Application for Personal Injury Benefits on

21 May 2019 claiming statutory benefits from the insurer. The description of the accident was completed by the claimant’s son, Andrew Almos, and states as follows:
“the truck overtook me and the wheels of the truck smashed into my car and I crashed into pole, truck carried me of [sic] the road…”

Statement of claimant – 19 April 2022

In support of the application with the Commission, the claimant has provided a statement dated 19 April 2022. It relevantly states as follows:
“I recall that I was driving along North Rocks Road in the suburb of Carlingford when the accident occurred. The road had two lanes going each way lanes, I was driving on the inside/slow lane at approximately 60 kilometres per hour. There was one truck travelling in front of me and another two trucks behind me in both lanes.
The road has a left-hand bend and that’s when one of the trucks behind me overtook in the right hand/fast lane, the other truck which was directly behind me then moved into the right-hand lane before swerving abruptly into my lane while my car was still alongside. The wheels of the large truck collided into the right side of my car.. My car then veered off the road and collided heavily with a power pole on the side of the road.
I do not remember anything after that as I lost consciousness…”

Statement of claimant – 29 July 2022

In a further statement provided for the purposes of these proceedings, the claimant relevantly states as follows:
“I was driving west-bound on North Rocks road in Carlingford when the accident occurred. The road had two lanes going each way. I was driving on the inside/slow lane at between 50 to 60 kilometres per hour. Prior to the collision, I recall that there was one truck travelling in front of me and another two trucks behind me in both lanes.
I was very careful in my driving and was taking all safety precautions. I never had trouble driving next to the big truck.
As I negotiated a gentle right-sided bend in the roadway, one of the trucks behind me attempted to overtake me while in the right hand/fast lane. The other truck which was directly behind me then also moved into the right-hand lane before swerving abruptly into my lane. This was a big truck and it drifted quickly into my lane as it was passing me. As it did so, the truck hit my car (which was wholly inside the kerbside lane), causing me to lose control and to veer off the road and collided heavily with a power pole on the other side of the road.
I did not have any chance of time to brake or move my car to avoid a collision as this happened so quickly when the truck swerved into my lane.”

Claimant’s oral evidence at assessment conference – 11 April 2023

The claimant was assisted with the services of an interpreter when giving evidence. She was able to listen and answer in English to some of the evidence, and the interpreter gave assistance as required.
Ms Allan commenced her questioning by focussing on inconsistencies between the medical evidence and the claimant’s statement as to her level of functioning prior to the accident. In particular, the claimant was questioned on her suffering a pre-existing knee injury that saw her to be in receipt of a disability support pension at the time of the accident, and also enjoyed the benefit of a mobility parking permit. The claimant gave inconsistent answers during questioning in respect of the level of functioning prior to the accident. Whilst at one point she stated she had recovered from the prior knee injury after two weeks, she acknowledged that she was in receipt of government benefits as a result of ongoing issues with the knee at the time of the accident.
The claimant was also questioned regarding inconsistencies in the evidence where the claimant has suggested in her statement that she had not suffered any psychological issues in the past, which is at odds with other evidence which suggests long-standing anxiety issues, including the prescribing of medication.
In respect of the circumstances of the accident, Ms Allan asked the claimant what she remembered from the accident given there is some indication from the histories provided to doctors that she had a limited memory. The claimant stated that she was travelling at 50 kmph (denying that she was travelling up to 60 kmph as suggested in her statements) and had two trucks behind her and one in front of her. She stated that the insured truck tried to overtake her and threw her to the side of the road and she lost consciousness. The claimant stated that her memory thereafter was lost.
The claimant stated that as she was travelling in lane one of the roadway there were two trucks behind her in lane one. It was noted that the second statement had a truck in each lane.
As to the location of the accident the claimant eventually agreed that whilst she noted a set of traffic lights near a service station, it could have been a car wash. She was not able to remember whether the lights at such location had turned red at any point.
The claimant confirmed that when the insured truck overtook her she was travelling at 50 kmph. In respect of the collision, the claimant confirmed that the movement of the truck into her path was a sudden movement. She was not able to provide details as to what the truck looked like, other than it was “big” and she could not confirm whether the truck was carrying anything.
The claimant denied the suggestion that the insured truck was in fact travelling in front of her and not behind as she alleged. She disagreed with the suggestion that she attempted to overtake the truck on the left.

Insured driver’s version of events
Police statement – day of accident

The claimant provided the NSW Police with a version of events by answering a number of questions. The insured driver confirms that he was travelling west along North Rocks Road around 3.00pm. He states:
“I was stopped at the set of traffic lights on North Rocks Road. The lights turned green. I was in the right hand lane but because I’m an oversized truck it takes up a bit more room and goes into the left hand lane a bit. So it goes about 2.8 over both lanes. The lights turned green and I excelerated [sic]. Next thing I realised a car was travelling up the inside left lane. She has tried to overtake me when her car couldn’t fit. All I felt was a bump and I looked into my side mirror and saw her car spinning. I then pulled over on the side of the road to check if she was okay.”
When asked how fast he was travelling, the insured driver stated: “around 40/km as I was taking off from the traffic lights I was going slow”.
The insured driver stated that he believed the claimant to be at fault as “she came up the middle trying to pass me even thou [sic] my truck has signs saying oversized”.
When asked if he felt anything the insured stated:
“I just felt her hit my front wheel. I was not merging at any point. When I took off at the lights I knew nobody was next to me. I was continuously checking my blind spots.”
It was also confirmed by the insured driver that he had his headlights on and the flashing lights were also going at the time of the accident.

Accident description statement (insurance – employer) – 20 May 2019

The insurer provided a version of events at the request of his employer for insurance purposes. The accident location is described as being at the intersection of Jenkins Road and North Rocks Road, North Rocks “near the lights”. The version provided is relevantly extracted below as follows:

“I was travelling in a westerly direction on North Rocks Rd, heading towards Becky Ave, North Rocks, as I was delivering the machine for scheduled road works. I had stopped at the lights at the intersection of North Rocks Rd & Jenkins Rd, North Rocks, taking up most of lane 2 and part of Lane 1, as I had a wide load on the trailer and was oversized. All the flags were out and the oversized sign was displayed and the flashing lights were on. Once the lights turned green, I proceeded to drive taking up both lanes, so as not to drift into oncoming traffic. All traffic remained behind me, and as I was busy concentrating looking forward and driving at approximately 40-50 km/hr in a 60km area, I was unaware that the car had undertaken on the inside, until I saw in the side mirror that there was a car that had hit a telegraph pole. At this stage, I had stopped and went to render assistance however as the driver of the car was trapped in her vehicle and there was nothing I could do to assist, I waited until the Police and Emergency crews arrived, as the car driver had to be cut out of her vehicle and transported to hospital…
The machine I was carrying was a Paver, approx. 2.8m wide.
The leading vehicle is a Paclease rental truck from Gilbert & Roach. The truck is a 610T Kenworth…”

Further police statement – 5 September 2019

A subsequent statement was provided to police where the insured clarified some matters. The statement is relevantly extracted below:
“With regards to the collision which occurred around 3.15pm on 11/05/2019 I would like to clarify the following points that police asked me about.
The traffic lights that I had come to a stop at prior to the collision were outside North Rocks Park.
From the lights I accelerated gradually and I was doing around 40-50 kph when the collision occured [sic]. The truck is very slow and has an automatic transmission that winds through 18 gears to get moving. The load was about 16 tonnes so the acceleration was very slow. The truck was a hire truck from Pack Lease and the rego was CM71ZG. I had the hire truck because my normal truck was having repairs on it.”

Insured driver’s oral evidence on 10 October 2022

Ms Allan, on behalf of the insurer questioned the insured driver regarding the inconsistency in his statements as to the location of the lights where he had stopped prior to the accident.
In this regard, in the second statement to police, the insured stated the relevant lights were located outside North Rocks Park. However, in the statement provided to the employer, he had stated that the lights were at North Rocks Road and Jenkins Road.
The insured driver clarified in response to Ms Allan that the correct set of lights is the one adjacent to the park. The insured driver was unsure of the area and he looked it up on a map and realised that the correct lights were outside the park and he therefore clarified with the police. He explained that the mention of the lights at Jenkins road in the description of accident filled out for his employer, was due to his employer looking at the area on Google Maps.

Mr Trainor, on behalf of the claimant also questioned the insured driver as to the location of the relevant set of lights. Mr Trainor noted that the insured driver gave a version of events to the police and when asked whether he told the police the location of the lights, the insured stated he did not because he and the police were right there, and you could see the lights were just behind them.
The insured driver stated that he was prompted to provide a further statement to police after receiving a call from them asking to confirm which set of lights he had stopped at prior to the collision occurring.
Mr Trainor directed the insured driver to a number of figures within the insurer’s expert report of Mr Keramidas. He was asked to confirm whether Mr Keramidas sequence of events set out in the report reflected what happened. The insured driver confirmed that he did not overtake the claimant’s vehicle at any stage and that he was not able to confirm the sequence of events as set out by Mr Keramidas because he did not see the claimant’s vehicle. He explained that the claimant had been in his blind spot.
It was put to the insured driver that he had attempted to overtake the claimant’s vehicle. The insured driver denied such suggestion and stated that he had a very heavy load and there is not a “big acceleration”. He explained he was the first vehicle stopped at the lights with no vehicle in front of him. He also confirmed that he had the truck in lane 2 and part of the truck was also in lane 1.
The insured driver agreed with a suggestion that there is a slight bend in the roadway. He also agreed that as he negotiated the bend that he would have drifted slightly to the left. He said words to the effect of: “Yes, because I am in two lanes.”

Expert evidence – William Keramidas

The insurer obtained a report from William Keramidas, traffic engineer, dated

14 September 2022.
Mr Keramidas has provided his opinion on the likely sequence of events leading up to and during the subject collision. He has done so on the basis of the NSW Police material, the first statement of the claimant and the version of events provided by the insured driver. In addition, Mr Keramidas had the benefit of an extensive number of photographs, these include site photographs taken by him, and also photographs contained with the NSW Police file. In addition, Mr Keramidas had the benefit of the specifications of the insured truck.
Following analysis of the evidence, Mr Keramidas summarises his opinion on page 58 of his report as follows:
“1.     The analysis permitted for the identification of the collision sequence to be made which included.
a.An initial contact between the left steer tyre on the Kenworth prime mover and the rear off-side quarter panel of the Toyota Starlet.
b.A sustained contact between the left steer tyre on the Kenworth prime mover and the off-side including the driver’s door of the Toyota Starlet.
c.An impact between the sidewall of the lead outside drive tyre on the left side of the prime mover and the quarter panel and trailing edge of the driver’s door on the off-side of the Toyota Starlet.
d.An impact between the sidewall of the lead outside drive tyre on the left side of the prime mover and quarter panel and trailing edge of he driver’s door on the off-side of the Toyota Starlet.
e.An impact between the leading edge of the Drake trailer and the rear off-side corner of the Toyota Starlet (involving a relative impact speed of 10 to 15 km/h).
2.     As a result of the impact to its rear off-side, the Toyota Starlet was thrust forward and to the left, such that the front of it impacted with a utility pole situated on the southern side of the roadway, marginally off-set from the kerb-line.
3.     The impact speed with the utility pole was assessed as being perhaps in the order of 40 km/h (or less).
4.     The author notes that there were completely differing versions of events provided by the Claimant and the Insured and on assessment of those events it was the author’s conclusion that the mechanics of the accident did not support the Claimant’s version of events that she was being overtaken by the Insured’s prime mover which then abruptly swerved into her.
The more likely sequence of events involved the Claimant attempting to overtake the heavy vehicle combination on the left side when there was less than a full lane width available to her.
5.     The Claimant’s likely speed at the time of the impact is consistent with the Insured’s version of events and inconsistent with the Claimant’s version of events.”
At the request of the claimant’s counsel, Mr Keramidas gave evidence at the assessment conference of 11 April 2023.
Mr Trainor noted that in his report, Mr Keramidas sets out the assumptions relied upon in reaching his conclusions. This included an assumption in respect of the lights the insured stopped at prior to the accident occurring. It is noted that such assumption reads as follows:
“The insured driver had stopped at an intersection in the moments proceedings the collision. The location of that intersection has not been confirmed but was either the intersection of North Rocks Road and Jenkins Road, or the pedestrian crossing outside of North Rocks Park.”
Mr Keramidas confirmed the location of the lights the insured stopped at is not a matter for his expertise, but a matter of evidence.
Mr Keramidas agreed that the general speed of the truck was not more than 40kmph. It was also agreed to by Mr Keramidas, that after three impacts of the claimant’s vehicle (two with the insured truck and then after turning counter clockwise a collision with a telegraph pole), the speed at which the claimant’s vehicle hit the telegraph pole would have been similar to the speed of the insured truck.
In this regard, it was noted that such conclusion was reached utilising an equation developed from extensive research regarding impact of vehicles into utility poles.

Mr Keramidas agreed that the conclusions reached should be treated as objective evidence, although noted that it cannot be said to be absolutely precise.
Mr Trainor suggested to Mr Keramidas that there was a “mutual inconsistency” in his report at pages 47 and 48 of the report. At such point in the report, Mr Keramidas explains that he has referenced the marks on the door of the claimant’s vehicle, caused by the insured truck’s front wheel, and in terms of the speed differential he notes:
“…Given that this speed differential occurs in about a quarter of a second, it means that either the truck was accelerating at 0.23g, or the Starlet was braking at that same rate. In the author’s opinion, it is extremely unlikely for the truck to be able to accelerate at what would be ‘rapid’ sedan level acceleration and therefore, in all probability, the Starlet was braking during this sustained contact.
If one were to increase the initial speed of both vehicle to 60km/h (as suggested by the Claimant) then the required acceleration would be 0.4g, which would be impossible for the truck to achieve and would require moderate braking for the Starlet to achieve”
Mr Keramidas then goes on to refer to the second impact which occurred between the front near-side corner of the Drake trailer and the rear off-side corner of the Starlet. With reference to the police photograph demonstrating the damage from such impact, he concludes that there was a significant speed differential between the two vehicles, perhaps in the order of 10 to 15 kmph. Mr Keramidas explains this is again consistent with the continual slowing of the claimant’s vehicle from the first contact through to the second impact.
As I understand Mr Trainor’s questioning, he suggests that the report is mutually inconsistent where on page 48 Mr Keramidas notes that the second impact propelled the claimant’s vehicle forward to match the speed of the trailer, whereas on page 47 there is mention of the claimant’s vehicle slowing.
Mr Keramidas explained that the common speed only occurs after the impact, and the initial speed differential is 10-15kmph with the truck travelling faster based on the etchings on the claimant’s vehicle’s driver’s door. Mr Keramidas confirmed that the etchings on the door indicate objectively that the claimant’s vehicle was travelling more slowly than the insured truck.
Mr Keramidas confirmed that the evidence demonstrates that there was a movement to the left from the insured truck. He rejected the suggestion that this represents a turning of the wheel of the truck and instead stated that it did not necessarily mean a turn of the wheel, but rather a relaxation of the hold of the wheel.
At the suggestion of Mr Trainor, Mr Keramidas confirmed that there is no basis to propose that there was not enough room for the claimant to make the undertaking manoeuvre.
Mr Trainor suggested that the insurer’s argument that there was not enough room to make an undertaking manoeuvre must be wrong given that the impact occurred with the relatively narrower part of the truck, being the cabin, and if there was not enough room to undertake the impact would have been with the trailer. Mr Keramidas stated that clearly there was enough room along that period of time.
Mr Keramidas also confirmed that theoretically the truck could fit inside the one lane with a clearance of 20cm. He qualified this, however, stating that this is provided there was no lateral movement. Mr Keramidas confirmed the summation of his conclusions as to why it was appropriate for the insured truck to occupy part of lane one.
This includes a “crossfall” which generates a lean on the load. Secondly, the height of the load can be compromised by trees and/or poles immediately adjacent to the kerb-line. Thirdly, as in the subject case, a slight bend or deviation in the roadway, whereby the insured would need to provide slightly greater clearance to the right side so that his turning trailer did not intrude onto the opposing traffic lanes. Mr Keramidas states “this could well explain why there may have been a slight deviation to the left of the prime mover’s path at the instant that the claimant was undertaking that vehicle.”
Mr Keramidas then goes on to state:
“Overall, the physical evidence appears to indicate that the speed of the vehicles at which this incident took place was entirely consistent with that reported by the Insured, and in all probability, the Claimant was in fact attempting to overtake this vehicle on its left when there would have been less (and probably significantly less) than a full lane width in which to attempt such a manoeuvre.
Of the two versions of events therefore, in the author’s opinion, the Insured’s version is on balance more likely to have occurred.”
Mr Keramidas agreed with Mr Trainor that he had taken some care in considering the layout of the roadway. It was noted that the report includes an aerial view of the subject roadway that was taken the day after the accident by “nearmap”. It was noted that such aerial surveys are done about once a fortnight.
Mr Keramidas agreed that his report notes that there are two bends in the roadway with one at the point of the telegraph struck by the claimant’s vehicle, that involves a deviation of about 2.3 degrees. It was further agreed that the insured driver would have been taking steps on approach to the bend by slowly drifting to the left.
In his report, and confirmed under questioning, Mr Keramidas notes that at the time of the accident the closest set of traffic lights to the collision point are a set of pedestrian lights located outside the North Rocks Park, approximately 290m from the incident location. Then, the next nearest set of traffic signals are at the intersection of North Rocks Road and Jenkins Road, some 350m east of the pedestrian crossing.
As noted there is some controversy as to which set of traffic lights the insured driver stopped at prior to the accident occurring. Mr Keramidas’ analysis has led him to the conclusion that if it were to be accepted that the insured had stopped at the signals adjacent to North Rocks Park then it would have been impossible for him to have caught up to a vehicle travelling along this roadway in the available distance. However, it would be “entirely conceivable” that in the time and distance available that a vehicle could attempt to undertake the insured truck.
In this regard at page 56 of his report, Mr Keramidas follows by stating: “the ultimate speed likely to have been reached by the heavy vehicle combination would be in the order of 40 to 50kmph and indeed the physical evidence relating to the trailer’s interaction with the starlet suggests that the speed was about 40 kmph. This is entirely consistent with the insured’s version of events and his description of having moved off very slowly from the lights, with no vehicle next to him at that point of departure.”
Mr Keramidas agreed with the proposition put to him that it was not possible that the claimant was travelling at 60kmph, and that it was highly unlikely that she was travelling at 50 kmph. Instead the evidence is that the speed was most likely approximately 40 kmph.
In respect of the claimant’s assertion that the truck wheel went on to her bonnet, it was concluded by Mr Keramidas that this would not have been the case. Instead, some of the damage to the area was caused post accident by emergency services. It is to be noted that under questioning, the claimant confirmed that her belief about a wheel going on her bonnet was borne from the conclusion of her son after viewing the vehicle post accident.
Mr Keramidas also concludes that the insured’s sight lines would not have allowed for a visual detection of the claimant’s vehicle at first contact.
It is then stated at page 57 of the report:
“Overall, the physical evidence appears to indicate that the speed of the vehicles at which this incident took place was entirely consistent with that reported by the insured, and in all probability, the claimant was in fact attempting to overtake this vehicle on its left when there would have been less (and probably significantly less) than a full lane width in which to attempt such a manoeuvre.”

SUBMISSIONS
Claimant’s submissions

The claimant’s initial written submissions of 26 July 2022 are brief on the issue of liability. It is essentially stated that the issue boils down to whose version of events I accept, the claimant’s or the insured driver’s.
Following the first assessment conference the claimant’s counsel provided further written submissions, specifically focussed on an alternative argument that the circumstances of the accident are such that the no-fault accident provisions of the MAI Act apply.
It is submitted that if I were to find that the insured driver did not breach his duty of care, then the subject accident was a no fault accident within the meaning of s 5.1 of the MAI Act. Noting that the no fault accident provisions of the MAI Act are essentially identical to the “blameless accident” provisions contained in the Motor Accident Compensation Act 1999 (MAC Act), it is submitted that the case law arising from the MAC Act in this regard applies to the MAI Act provisions.
In making the submission that the no fault accident provisions would apply, the submissions rely on the case of Melenewycz v Whitfield [2015] NSWSC 1482 (Melenewycz). In particular, the point made by Justice Hamill that it is necessary to decide only that the plaintiff’s act or omission in that case caused the accident not that the plaintiff was at fault or negligent is highlighted in the submissions.
It is suggested that there is nothing described in the report of Mr Keramidas that indicates either an act or omission of the claimant outside the simple act of driving as being causal to the collision.
Oral submissions given at the second assessment conference by Mr Trainor, conceded that some difficult aspects of the claimant’s evidence exist. However, it was submitted that the version of the insured truck overtaking the claimant has been a constant theme throughout the claimant’s case.
It was conceded that the claimant’s estimate of speed is difficult to reconcile with the report of Mr Keramidas, however that does not mean that the truck was not overtaking. It was submitted that on the evidence of Mr Keramidas there was sufficient time for the insured to accelerate from the lights (presumably at Jenkins Road) to build up speed to overtake the claimant. If I were to accept the insured driver was overtaking the claimant, it was submitted that the claimant must win.
In respect of the alternative case of a ‘no-fault’ accident the submission was reiterated that there was no act or omission of the claimant that caused the accident. It was submitted that it was the lateral movement of the insured truck that caused the accident and the undertaking manoeuvre of the claimant (if I were to find this is the case) did not put the claimant’s vehicle in contact with the truck, it was the lateral movement of the truck.
Mr Trainor described any undertaking manoeuvre of the truck as merely a “background fact”.

Insurer’s submissions

Written submissions of the insurer dated 19 September 2022, submit that the opinion of Mr Keramidas as contained within his report is objective evidence sufficient to demonstrate that the insured’s version of events is entirely consistent with the physical evidence.
The insurer asserts that it has gone to considerable effort to obtain evidence to give genuine consideration to the claimant’s version of events. This includes factual investigations, obtaining the NSW Police file and obtaining the report of Mr Keramidas. It is submitted that the culmination of such evidence is not consistent with the claimant’s version of events, and are instead entirely consistent with the insured driver’s version of events.
The insurer points to the conclusions of Mr Keramidas in disputing the suggestion the insured driver overtook the claimant. Specifically, the insurer refers to page 54 of the report where Mr Keramidas concludes that in order for such an overtaking manoeuvre to occur then he would need to have been travelling something in the order of 60 to 75 kmph. Mr Keramidas notes that the observed physical evidence of the damage to the claimant’s vehicle is inconsistent with such an impact speed. Such conclusion is made regardless of which set of lights the insured stopped at.
The insurer also relies upon the conclusion of the Heavy Vehicle Compliance Force of the NSW Police that indicated that the insured was compliant with the speed signage.
The insurer submits that I would be satisfied that the insured driver stopped at the lights adjacent to North Rocks Park. On such basis the insurer submits the following conclusions reached by Mr Keramidas would be accepted:
“a.     It would have been impossible for the insured to have caught up to the claimant’s vehicle in the available distance, let alone overtake her. The likely speed reached by the insured is 40-50 km/h, as is consistent with the physical evidence of damage sustained.
b.     It is entirely conceivable, in the time and distance available to the claimant, that she could attempt to undertake the wide load.
c.     The sightlines available to the insured driver in the cabin would not have allowed for visual detection of the claimant’s vehicle, through initial or sustained contact.
d.     It is reasonable that the insured would choose to travel in Lane 2 to avoid crossfall and assist in control of the heavy combination vehicle, simultaneously partially straddling Lane 1 to provide sufficient clearance to opposing traffic, as is permissible for heavy and wide loads displaying the correct signage, as the insured did.
e.      On site examination, there is a slight deviation in the road which means that the insured needed to provide slightly greater clearance to the right side which may explain why the insured may have slightly deviated to the left at the instant the claimant was undertaking.”

Counsel for the insurer, Ms Allan provided written submissions in response to the submissions advancing an alternative argument that the no-fault accident provisions apply. She submits that if I find that the accident was not caused by the fault of the insured driver, the accident can only be a no fault accident if I also find that the accident was not caused by an act or omission of the claimant in the operation of her vehicle.
It is further submitted that if I were to find the accident occurred as alleged by the insured driver, it is clear that he accident was caused by an act or omission of the claimant. Further, it matters not whether or not that act or omission was negligent.
Ms Allan at the second assessment conference opened oral submissions by asserting that this case is not a “no-fault” accident under any circumstances. She stated that it was either an accident caused by the fault of the insured driver, or otherwise the fault of the actions of the claimant. Ms Allan noted it was not a single vehicle accident.
Ms Allan noted that the insured driver was driving an oversized truck, with flashing lights and the evidence is that he was driving in lane two and partly in lane one.

Ms Allan submitted that I would prefer the version of the insured driver, noting his consistent evidence starting with the contemporaneous version of events given to the NSW Police.
It was further submitted that it amounts to common sense not to undertake a vehicle such as the insured truck and that it is implausible that the truck would have swerved as alleged by the claimant with such a heavy load.
Ms Allan also pointed to the inconsistencies in the claimant’s evidence, including the evidence in respect of damages. It was submitted that there are issues of credit.

FINDINGS AND REASONS

The version of events provided by the claimant as opposed to the version of events provided by the insured driver are dramatically different.
Based upon the evidence, I prefer the version of events provided by the insured driver.
In reaching this conclusion I found the insured driver to present in a straight forward and logical manner when giving evidence at the first assessment conference. I found no issues of credit and consider the insured driver to be a witness of truth.
On the other hand, I found the claimant to present as a difficult witness whose evidence was not straightforward. It was at times difficult to have the claimant answer a question put to her in a direct manner.
I also concluded that the claimant would shift her answers to questions in a way that she perceived best suited her case. By way of example only, in respect of her physical condition prior to the accident, the claimant initially denied that she had ongoing issues with her knee that had been injured in a work incident. She stated that the injury had resolved. However, when evidence was put to her that suggested otherwise, and that she had ongoing issues with the knee, her evidence changed.
I did not consider the claimant to be a reliable witness. There is also suggestion that some of the conclusions in her statements are based upon things other than her own direct recollections. For example, her statement that the truck wheel came onto her bonnet was revealed as a hindsight conclusion based upon the observations of her son after the accident.
Moreover, the version of events of the insured is consistent with the remaining evidence before me. Indeed, such evidence is almost entirely inconsistent with the claimant’s version of events.
Of crucial importance, I find the suggestion that the insured driver overtook the claimant to be implausible. I accept the insured’s evidence that as an experienced driver he was driving in a cautious manner, carrying a wide and heavy load. I accept his evidence that he was partially straddling lane 1 when he stopped at the lights and when he accelerated from them. I accept that this is not only an acceptable way to travel in such circumstances, but indeed preferable so as to safely navigate the roadway.
In this regard, I accept the evidence of Mr Keramidas which sets out three distinct reasons why the insured driver travelling in such a manner is appropriate, as set out above.
Having accepted that the insured was travelling in lane 2 and partly in lane 1 the claimant’s suggestion that the insured was initially travelling in lane 1 behind her and then moved to lane 2 and overtook her cannot be accepted.
In respect of which set of lights the insured driver stopped at, whilst there is some level of doubt whether it was the pedestrian crossing at the park or the lights at Jenkins Road, on the balance of probabilities I find that the insured in all likelihood stopped at the lights at North Rocks Park.
In making this finding, I note that I accept the insured driver’s evidence as being truthful and accept his explanation that after examining the area with the assistance of maps he clarified the situation with the NSW Police.
I also note that Mr Keramidas has accepted that such scenario is consistent with the crash dynamics and physical evidence considered by him.
Such finding, strengthens my conclusion that the insured driver did not attempt an overtaking manoeuvre of the claimant’s vehicle, as suggested by the claimant. It is noted that on the analysis of Mr Keramidas such manoeuvre would not be possible.
Accordingly, the only plausible explanation for the accident occurring is consistent with the insured driver’s version of events that the claimant attempted to overtake the insured truck on the left.
The claimant did so despite the obvious fact that the insured truck was oversized. In this regard, not only was the size of the truck and load visually obvious (as evidenced by the police photographs), the truck also had “over sized” signage and flashing lights displayed.
On the basis of the evidence of Mr Keramidas, who undertook a careful analysis of the physical damage to the claimant’s vehicle, I find that the claimant managed to pass the length of the insured’s truck trailer and it was not until she had reached the cabin of the truck that the collision occurred.
Whilst it is true that the cabin of the truck is relatively shorter in width than the trailer, I find on the evidence, and essentially admitted by counsel for the claimant, the collision occurred due to a lateral movement of the truck to the left.
That lateral movement is clearly explained by the slight bend in the road as observed by Mr Keramidas, and was found to be consistent with the physical damage to the claimant’s vehicle and the telegraph pole.
I also accept the evidence of Mr Keramidas on the issue of travel speed at the time of the accident. That is, that at the time of the first impact the claimant’s vehicle was travelling at a speed less than the insured truck. Whilst I have made such finding, that does not cancel the suggestion that the claimant had attempted to undertake on the left hand side. Clearly at some point the claimant’s vehicle was travelling at a greater speed than the insured vehicle in order to reach the truck’s cabin. That does not mean that I cannot make a finding that at the time of the first impact the travel speed was equal to or less than the insured truck. It may well be that the claimant perceived danger and lowered her speed. In such scenario, clearly the perception of danger would be reasonable owing to the eventuality of the subject collision.
I also accept the evidence of Mr Keramidas, which was not disputed, that at the point of impact he had no line of sight of the claimant’s vehicle.
Accordingly, I find that the proximate cause of the accident was the claimant’s attempt to overtake the insured’s oversized vehicle on the left hand side.
In making this finding, I am supported by the conclusions of Mr Keramidas, whose evidence was not damaged under questioning from the claimant’s Counsel, who found the insured’s version of events to be the more plausible and likely.
I find that the insured driver did not breach his duty of care. I find that his manner of driving was appropriate and reasonable in the circumstances and he had no reasonable opportunity to take action to avoid the collision.
Echoing the opinion of the Heavy Vehicle Compliance Force of the NSW Police, I consider the undertaking of the insured vehicle was a very dangerous action to take. Accordingly, I consider the claimant to be at fault.
I note that s 5.1 of the MAI Act defines a “no-fault motor accident” to be:
“a motor accident in the State not caused by the fault of the owner of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.”
Having found the claimant to be at fault, it follows that the no fault provisions of the MAI Act do not apply. The submission that the claimant’s undertaking manoeuvre is merely a “background fact’ is unmeritorious. The claimant made a conscious decision to undertake an oversized truck and in doing so put herself at risk. A reasonable person in her position would not have attempted such manoeuvre and instead would have followed behind the insured vehicle.
The claimant operating her vehicle in such a manner where she undertook the insured vehicle is clearly a conscious and deliberate act. I reject any suggestion that such fact is merely a “background fact.”

CONCLUSION

I find that the insured driver did not breach his duty of care.
I find that the no fault accident provisions of the MAI Act do not apply.
It follows that the claimant has no entitlement to damages.
As the claimant has been unsuccessful, I do not award costs in her favour.

[2023] NSWPIC 227

10 May 2023