Dybal v Allianz Australia Insurance Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dybal v Allianz Australia Insurance Ltd [2022] NSWPIC 181
CLAIMANT:	Joanna Dybal
INSURER:	Allianz Australia Insurance Ltd
MEMBER:	Hugh Macken
DATE OF DECISION:	9 April 2022
CATCHWORDS:	MOTOR ACCIDENTS – Contributory negligence; learner driver; onus of proof; inferences to be drawn; failure to provide statements; failure to take evasive action.
DETERMINATIONS MADE:	1. For the purposes of section 3.11 the motor accident was caused by the fault of another person. 2. For the purposes of section 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person. 3. For the purposes of section 3.38 contributory negligence of 15% is found on the part of the claimant. 4. Effective Date: This determination takes effect on 9 April 2022. 5. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,710.24 inclusive of GST.

Reasons for Decision

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

BACKGROUND

This is matter arising from the insurer’s determination of 25% contributory negligence on the part of Joanna Dybal (the claimant). That is the insurer contends that the claimant contributed to the cause of the accident by failing to take evasive action.
There was no statement provided in this matter from the claimant nor from the driving instructor who was with the claimant at the time of the accident.

DOCUMENTS CONSIDERED

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

SUBMISSIONS

I have read all submissions in this matter.
The primary submission on the part of the claimant was that the insured had not made out or provided material establishing that the claimant was partly responsible for the accident in that she failed to observe the insured’s vehicle, a semi-trailer, and accordingly failed to change lanes from the left lane to the right-hand lane prior to the collision occurring.
The insurer has submitted material that supports the contention that the claimant did fail to observe the insured vehicle and did fail to take evasive action and accordingly there ought to be a finding of contributory negligence of 25%.

REASONS

It was common ground that the claimant was a learner driver who was proceeding north on the Hume Highway past the Marulan Weigh Station and was in the left-hand lane. It was common ground that the claimant was in the left-hand lane whilst driving past the Marulan Weigh Station and the insured driver, who was operating a B double semi-trailer, was slightly behind them and to their left in a lane which was to merge with the left-hand lane of the Hume Highway. That is the lane in which the vehicle in which the claimant was driving in.
There is general consensus as to what happened. The vehicle in which the claimant was driving was struck from behind and forced off the right-hand verge of the roadway into the bushes which separate the north bound and south bound lane of the Hume Highway. Breach of duty of care on the part of the insured truck driver has been admitted. The insurer alleges that the claimant ought to be found to have contributed to the accident to the extent of 25% due to her failure to observe the insured vehicle and failure to change lanes from the left-hand lane to the right-hand lane noting that the truck was moving from the merge lane into the left-hand lane.
The issues to be determined are relatively straight forward and two-fold. Firstly, was the claimant guilty of contributory negligence? If so, in what percentage.
The claimant holds a learner’s permit and is, by law, limited to travelling at maximum speed of 90 kilometres per hour. She was under instruction at the time of the accident and was passing the Marulan Weigh Station at night and in rainy conditions. The only material available from the claimant in respect to the circumstances of the accident is a transcript of the answers she gave to the questions put by the police. She says:
“myself and Piotr Lemieszek were travelling along Hume Highway towards Sydney near Marulan NSW with a speed of 80 kms/h. We were suddenly hit from behind, dragged several metres and then after racking off front of the truck and spinning in an uncontrollable manner on the right lane, we landed in the green strap dividing both directions of the Highway.”
There is no statement from her. There is no explanation as to how she did not see the truck which was immediately to her left then immediately behind her. There is no statement whether she could or could not merge into the right-hand lane which would allow me to determine or hypothesize on any matter in which the parties disagree. In particular, as to whether or not there were circumstances in which it would be reasonable for the claimant to either change into the right-hand lane or oblige the claimant to stay in the left-hand lane as she did.
I must be satisfied, on the balance of probabilities, that the insurer has made out negligence on the part of the insured driver. Clearly the insurer has admitted breach of duty of care on the part of their insured which is not surprising noting the police report which states that he merged into lane one of two north bound lanes and felt a bang in front of his vehicle thinking he had struck an animal.
In my opinion it is reasonable to conclude that a B Double truck to the immediate left of the vehicle in which the claimant was driving would, and ought, to have been seen. Noting that the vehicle was adjacent to the truck and that both vehicles were moving in a northerly direction I accept the insurer’s contention that the truck ought to have been seen and some evasive action ought to have been taken by the claimant. If there was any reason why this would not to have occurred, it was open for the claimant to provide a statement stating why. As it did not occur, then it was also open for the claimant to provide a statement explaining why it did not occur. If there is a reasonable inference to be drawn that a reasonable person in the position of the claimant would have observed the truck, its proximity to her vehicle and its intention to enter into the lane in which she was travelling then the claimant could have provided a statement dealing with this matter. I think in the circumstances where the claimant could have provided an explanation and did not do so, there is an inference which can reasonably be drawn from this. (See generally Jones v Dunkel [1959] HCA8).
The inference that I can draw is that any statement which could have been provided by the claimant dealing with these matters would not assist the claimant in determining that there ought to be no contributory negligence finding in this matter.
Accordingly, I find the insurer has made out its contention that the claimant ought to be found to have contributed to the circumstances of the accident.
The question is now what percentage ought to be allowed for contributory negligence.
The overwhelming responsibility for this accident was that the insured’s vehicle struck the claimant’s vehicle from the rear. The highest that any allegation of contributory negligence can be put against the driver is that she did not observe the insured’s vehicle, which was to her left and behind her, and take any evasive action.
Whilst the facts and circumstances of the accident, together with the inference to be drawn from the failure on the claimant’s part to provide a statement support the contention that there is some negligence on the part of the claimant. She was a learner driver under instruction. Whilst there were steps she could have taken to avoid the accident these must be considered in light of the overwhelming negligence on the part of the insured driver. There may have been issues about the degree of visibility in the wet weather and at night, there might have been concerns about her exceeding the speed limit in the circumstances, there may have also been some concerns with her being able to change to the right-hand lane. In any event, her failure ought to be considered against the overwhelming negligence on the part of the insured driver.
I consider the claimant, in circumstances where negligence relates to a failure to observe and change lanes, to be minimal. In all the circumstances, I assess contributory negligence on the part of the claimant to be 15%.

COSTS

I note that the claimant is entitled to both professional costs and disbursements in relation to the use of a Polish interpreter. I assess costs including GST in the sum of $1,710.24.

LEGISLATION

In making my decision I have considered the following legislation and guidelines:
·Motor Accident Injuries Act 2017 (NSW) (the Act), and
·Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020.

Hugh Macken

Member (Motor Accidents Division)

Personal Injury Commission

[2022] NSWPIC 181

9 April 2022