Elomari v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Elomari v Allianz Australia Insurance Limited [2022] NSWPIC 277
Claimant:	Jihan Elomari
insurer:	Allianz Australia Insurance Limited
Member:	Stephen Boyd-Boland
DATE OF DECISION:	13 April 2022
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims dispute; was the claimant wholly at fault for the accident; sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; Claimant involved in collision with the insured’s vehicle; contributory negligence; section 5R of the Civil Liability Act 2002; Held – Claimant wholly at fault for accident; Podrebersek v Australian Iron and Steel applied.
determinations made:	*Certificate Issued under section 7.36(4) of the Motor Accident Injuries Act* 2017** 1. For the purposes of section 3.11 the motor accident was caused wholly by the fault of the injured person/claimant.
2. For the purposes of section 3.28 the motor accident was caused wholly by the fault of the injured person/claimant.
3. Effective Date: This determination takes effect on 13 April 2022.
4. Legal Costs: The amount of the Claimant’s costs assessed have not been determined.

Reasons for Decision

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

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(d) and (e) of the Motor Accident Injuries Act 2017 (the MAI Act), about fault and contributory negligence.

There is a dispute between Jihan Elomari (the Claimant) and Allianz Australia Insurance Limited (the Insurer) in respect of whether.
a. or the purpose of section 3.11 of the MAI Act the motor accident concerned was caused by the fault of the person with the provisions of Schedule 2 clause (3)(d) of the Act; and/or
b. for the purpose of section 3.28 of the MAI Act the motor accident concerned was caused by the fault of the person with the provisions of Schedule 2 clause (3)(e) of the Act; and
c. if applicable, for the purpose of section 3.38 of the MAI Act, the Insurer is entitled to reduce statutory benefits payable for contributory negligence with the provisions of Schedule 2 clause (3)(g) of the Act.
It is not disputed that on 14 June 2021 at about 1.00 pm the Claimant was involved in a collision with the insured driver’s vehicle.
The Claimant completed an Application for Personal Injury Benefits form on 5 July 2021.
On 1 October 2021 the Insurer made a determination that the Claimant was wholly at fault for the motor accident. that for the purposes of section 3.11 and section 3.28 the Claimant was "wholly at fault".
On or about 14 October 2021 the Claimant sought a review of the decision.
On 4 November 2021 the Insurer confirmed its earlier determination.
On or about 29 November 2021 the Claimant lodged a Dispute Resolution Service Application form.
The Insurer lodged a Dispute Resolution Service Reply.
A Teleconference was conducted on 15 February 2022 and on 17 March 2022, at the Telephone conference on 17 March 2022 it was determined that I would undertake an assessment on the documents available via the portal.

Documents Considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.
At the Assessment Conference the parties confirmed that the documents to be relied upon consisted of:
a.    the Claimant’s documents labelled as A1 to A6 inclusive, AD1, AD2 and AD3;
b.    the Insurer’s documents labelled as R1-R3, R2-R5, R3-R6, R6-R1, R7-R2 and R8R4:
c.     two video recordings of aspects of the incident labelled as R4-R7 and R5-R8.

Submissions

The Claimant's submissions were set out in the written submissions dated 11 March 2021.
The Insurer's submissions were set out in the written submissions dated 12 January 2021.
The Claimant asserts that the CCTV footage does not depict the full account of the events leading to the subject accident.
The Claimant asserts that the CCTV footage does not depict the Insured driver crossing over into her lane and clipping her rear mirror. That the Claimant has not had a reasonable opportunity to take evasive action to avoid the collision. As a result, the Claimant swerved and collided with a centre concrete separation. The Claimant then lost control of her vehicle and veered to the left colliding with the Insured.
The Claimants submission were made in response to the submissions of the Insurer.
The Claimants submission refer to the application for personal injury benefits dated 5 July 2021 (claim form), and note the Claimant asserted that the accident was caused by the insured driver swerving into her lane. The claim form is signed and dated by the Claimant. As part of the claim form, Claimant completed a declaration that the information she was providing in the claim form was "true and correct in every respect". Penalties apply for providing false or misleading information.
The Claimants submissions note the Insurer relies upon Insurer relies on NSW Police Report, CCTV footage, Interview of Insured Driver and the Summation of Police interview with Snr Constable Connelly and the evidence from the alleged witness Mr Soaki. The Claimants submissions are critical of the NSW Police Report, Interview of Insured Driver, the Summation of Police interview with Snr Constable Connelly and the evidence from the alleged witness Mr Soaki.
The submissions of the insurer include (at paragraph 13(d)) the following: “At all times preceding the accident, every vehicle except the Claimant’s vehicle remains wholly within its lane and proceeds in an unremarkable manner. Specifically, the insured vehicle remains wholly within its lane and does not deviate towards the edge of its lane.”
The Insurer asserts that fault by a Claimant for the purpose of subsections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the Act) is fault of the kind referred to in section 3.38 of the Act.
Section 3.38 of the Act says that the common law and enacted law as to negligence and contributory negligence will apply when assessing the extent to which a Claimant has contributed to her own injuries.
The applicable principles for evaluation of contributory negligence are laid out in section 5R(1) of the Civil Liability Act 200s:
…the standard of care required of the person who suffered harm Is that of a reasonable person in the position of that person, and the matter is to be determined on the basis of what that person knew or ought to have known at the time.
The Insurer then makes reference to various road rules in relation to whether the Claimant failed to apply reasonable care to her own safety and whether she breached the duty of care owed to other road users:
Regulation 47 – A driver of a vehicle must give a left change of direction signal by operating the vehicle’s left direction indicator lights;
Regulation 140 – A driver must not overtake a vehicle unless the driver has a clear view of any approaching traffic, and the driver can safely overtake the vehicle; and
Regulation 148(1) – A driver who is moving from one marked lane (whether or not the lane is ending) to another marked lane must give way to any vehicle travelling in the same direction as the driver in the marked lane to which the driver is moving.

Reasons for The Assessment

The parties both agreed to an assessment on the papers and as such neither the Claimant nor the Insured Driver provided oral evidence or were questioned.
The Claimant asserts that the CCTV footage does not depict the full account of the events leading to the subject accident (paragraph 2 of the Submission of 11 March 2022).
Unfortunately, the Claimant does not make it clear whether it is asserted that the initial contact with the Claimants Mirror occurred during the period of time covered by the CCTV footage or whether it occurred prior to the CCTV footage.
Having reviewed the CCTV footage, it seems highly unlikely that it is asserted that it occurred before the commencement of the CCTV footage.
If it did occur before the commencement of the CCTV footage, it would be hard to see how it could be of any significance to the circumstances of the accident.
On reviewing the CCTV footage, I am of the view that anything that occurred before the commencement of that footage could not be causative of the circumstances of the accident.
The Claimant asserts that:
a. the CCTV footage does not depict the Insured driver crossing over into her lane and clipping her rear mirror; and/or
b. that the accident was caused by the insured driver swerving into her lane.
There is no other person and nothing else alleged by the Claimant to be at fault in causing the accident.
CCTV footage was provided from two sources, described as “above the bridge” and “below that bridge”.
Subject to the Claimants contention, the video provides good evidence as to what occurred.
The CCTV footage was viewed by attending officer, Senior Constable Geoff Connelly.
The CCTV footage below the bridge
In its submissions the Insurer set out a summary of the CCTV footage, the Claimant did not take issues with that summary.
The summary from the Insurer contained the following:
a.    At 00:08 the insured vehicle (white Mazda sedan) is observed travelling in lane 2 of 3 immediately followed by a maroon coloured vehicle;
b.    At 00:10 the Claimant is observed overtaking the maroon vehicle and veering from lane 3 of 3 into lane 2 of 3 between the maroon vehicle and the Claimant’s vehicle, without using an indicator;
c.     At 00:11 the Claimant is observed steering back into lane 3 of 3;
d.    Between 00:11 and 00:13 the Claimant is observed swerving erratically to regain control of her vehicle;
e.    At 00:13 the Claimant is observed colliding with the centre barrier to her right
f.   At 00:14 the Claimant is observed swerving back to the lane 2 of 3, colliding with the insured vehicle. The insured vehicle is simultaneously observed taking evasive manoeuvre and pushed against the concrete barrier before coming to a halt;
g.    At 00:16 the Claimant’s vehicle is observed coming to a complete perpendicular stop in lane 2 of 3.
h.    At all times preceding the accident, every vehicle except the Claimant’s vehicle remains wholly within its lane and proceeds in an unremarkable manner. Specifically, the insured vehicle remains wholly within its lane and does not deviate towards the edge of its lane.
The CCTV footage above the bridge
In its submissions the Insurer set out a summary of the CCTV footage, the Claimant did not take issues with that summary.
The summary from the Insurer contained the following:
a. At 00:05 the Claimant is observed veering left into lane 2 of 3 between two vehicles
(insured vehicle in front and maroon coloured vehicle behind);
b. At 00:06 the Claimant is observed “over correcting” back into lane 3 of 3;
The remainder of the CCTV footage mirrors the CCTV footage captured from under the bridge.
At all times preceding the accident, every vehicle except the Claimant’s vehicle remains wholly within its lane and proceeds in an unremarkable manner. Specifically, the insured vehicle remains wholly within its lane and does not deviate towards the edge of its lane
Whilst I am not technically bound by the rules of evidence, they are an established structure for the evaluation of potential evidence and placing great weight upon material that may not be admissible potentially raises issues of procedural fairness.
In this regard neither party cast any doubt upon the authenticity of the CCTV footage.
I find that the relevant facts are as contained in the video and as described above.
The application for personal injury benefits dated 5 July 2021 contains the following

“driving normally, she swerves into my lane, her wheels cross over onto the white lane. I then swerved away from her, I was going 100 km, I then hit the wall.. “.

The Insured driver crossing over into her lane and clipping her rear mirror
There is no evidence to support the assertion contained in the Claimants contention of the Insured driver crossing over into her lane and clipping her rear mirror.
No such assertion or allegation is made by the Claimant in any of the documents before me, aside from the submission prepared by the Claimants solicitors.
As noted by the Claimants solicitors the claim form is signed and dated by the Claimant. As part of the claim form, Claimant completed a declaration that the information she was providing in the claim form was "true and correct in every respect". Penalties apply for providing false or misleading information.
Having reviewed the CCTV footage available, there is nothing to support the Claimants contention of the Insured driver crossing over into her lane and clipping her rear mirror.
The CCTV footage above the bridge has the relevant matters occurring between 0.5 and
0.9.
At the start of 0.5 (above the bridge) the Claimant is starting to merge into lane 2 of 3, the Claimants vehicle is clearly behind the vehicle of the Insured driver.
During 0.5 (above the bridge) the Claimant partially merged into lane 2 of 3, the Claimants vehicle is clearly behind the vehicle of the Insured driver, the Claimants vehicle then returns to lane 3 of 3
At the start of 0.6 (above the bridge) the Claimants vehicle is still behind the Insured Driver’s vehicle and is in lane 3 of 3 and is in close proximity to the centre concrete separation barrier. Given the quality of the video it is not clear to me whether the Claimants vehicle makes contact with the centre concrete separation barrier.
During 0.6 (above the bridge) the Claimant moved toward lane 2 of 3 and then back toward lane 3 of 3.
At the start of 0.7 (above the bridge) the Claimants vehicle is almost level (but slightly behind) the vehicle of the Insured driver, the Claimants vehicle then moves away from lane 2 of 3 and the vehicle of the Insured driver and returns to lane 3 of 3 and is in close proximity to the centre concrete separation barrier.
At the start of 0.8 (above the bridge) the Claimants vehicle is in close proximity to the centre concrete separation barrier.
In the period from the start of 0.5 (above the bridge) to the start of 0.6 (above the bridge) the Claimants vehicle is still behind the Insured Driver’s vehicle.
The CCTV footage (above the bridge) in the period from the start of 0.5 (above the bridge) to the start of 0.8 (above the bridge) does not show any noticeable variation in the position of the Insured Drivers vehicle relative to the lanes of traffic. Given the quality of the video it is not clear to me precisely where the lane markings are.
The CCTV footage above the bridge clearly shows that at all times during the period when Claimants vehicle then returns to lane 3 of 3 and is in close proximity to the centre concrete separation barrier that the Claimants vehicle is behind the Insured Driver’s vehicle.
There is no evidence to the effect that the Insured Drivers vehicle made contact with the mirror of the Claimants vehicle at any point before the Claimants vehicle was in close proximity to the centre concrete separation barrier.
The CCTV footage (below the bridge) provides a better view of the lane markings than the CCTV footage (above the bridge) at about the start of 0.8 it appears to show the Insured Drivers vehicle exiting the slight change of direction of the road and within lane 2 of 3, Insured Drivers vehicle remains within lane 2 of 3 up until at least 0.12.
The CCTV footage (below the bridge) during the period from the start of 0.8 up to 0.12 does not show the Insured Drivers vehicle to make any movements toward or into lane 3 of 3.
The Claimant contends that as a result of the Insured driver crossing over into her lane and clipping her rear mirror, she has not had a reasonable opportunity to take evasive action to avoid the collision and as a result, the Claimant swerved and collided with a centre concrete separation.
I do not accept the Claimants assertion of the Insured driver crossing over into her lane because it is inconsistent with the CCTV footage above the bridge.
I do not accept the Claimants assertion of the Insured driver clipping her rear mirror because it is inconsistent with the CCTV footage above the bridge.
As I do not accept that the Insured driver crossed over into her lane and I do not accept that the Insured driver clipped her rear mirror, I do not accept that as a result of that conduct that the Claimant swerved and collided with a centre concrete separation.
On reviewing the CCTV footage, it appears that the Claimant had lost effective control of her vehicle well before she was in close proximity to the Insured Driver’s vehicle.
She swerves into my lane, her wheels cross over onto the white lane
The only other evidence of conduct that could amount to fault on the part of the Insured driver relied upon by the Clamant was the contention set out in the application for personal injury benefits that “ … she swerves into my lane, her wheels cross over onto the white lane. I then swerved away from her… “.
There is a direct conflict between the version given by the Insured Driver and that given by the Claimant.
It would seem that the Claimants solicitors concede that the CCTV footage does not corroborate the version of events provided by the Claimant.
Having reviewed the CCTV footage available, there is nothing to support the Claimants contention of the Insured driver crossing over into her lane and clipping her rear mirror.
There is no evidence to the effect that the Insured Drivers vehicle made contact with the mirror of the Claimants vehicle at any point before the Claimants vehicle collided with the centre concrete separation barrier.
I note the finding I have made above.
The CCTV footage (below the bridge) during the period from the start of 0.8 up to 0.12 does not show the Insured Drivers vehicle to make any movements toward or into lane 3 of 3.
I do not accept the Claimants assertion of the Insured driver swerving into the Claimants lane because it is inconsistent with the CCTV footage.
I do not accept the Claimants assertion of the Insured driver’s wheels cross over onto the white lane because it is inconsistent with the CCTV footage.
As I do not accept that the Insured driver swerving into the Claimants lane and I do not accept that the Insured driver’s wheels cross over onto the white lane, I do not accept that
as a result of that conduct that the Claimant swerved and collided with a centre concrete separation.
On reviewing the CCTV footage, it appears that the Claimant had lost effective control of her vehicle well before she was in close proximity to the Insured Driver’s vehicle.
The Insurer refers to the comments of Senior Constable Geoff Connelly.
The Claimant takes issue with the evidence of Senior Constable Geoff Connelly.
In making my determinations I have preferred the evidence in the CCTV footage to the statements made by the Claimant.
Whilst I have considered the NSW Police Report, Interview of Insured Driver, the Summation of Police interview with Snr Constable Connelly and the evidence from the alleged witness Mr Soaki, in reaching my conclusions I preferred the CCTV footage.

Legislative framework and approach

Section 3.11 provides:

3.11 Cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks

(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 provides:
3.28 Cessation of statutory benefits after 26 weeks to injured adult persons with minor injuries
(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred 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 and the person was over 16 years of age at the time of the motor accident, 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 3.11(1)(a) and 3.28(1)(a) contemplate two circumstances, where "the motor accident was caused wholly … by the fault of the person” or where "the motor accident was caused … mostly by the fault of the person”.
In the circumstances of “mostly at fault” within the terms of Section 3.11(1)(a) and 3.28(1)(a) then by virtue of Section 3.11(2) and 3.28(2) consideration of contributory negligence is required within the terms of Section 3.38.
It is the Insurer who is seeking to assert the application of Sections 3.11 and Sections
3.28 and the onus rests on the Insurer.
Section 1.4 of the Act includes definitions, specifically "fault" means negligence or any other tort.
The reference in sections 3.11, 3.28 and 3.38 to “motor accidents” then enlivens Section 3B(2)(a) of the CLA which expressly provides that Divisions 1 to 4 and 8 of Part 1A of the CLA apply.
In my view in a two-vehicle accident, I would find one driver to be wholly at fault if there was no negligence on the part of the other driver.
If I find negligence on the part of the other driver, the driver is not wholly at fault.
If I find primary negligence on the part of the other driver, then in determining whether the Claimant was mostly at fault I should consider whether there is any contributory negligence at all on the part of the Claimant and if there is the degree of that contributory negligence.
If the degree of contributory negligence is greater than 61% then, by virtue of Sections

3.11(2) and 3.28(2), the Claimant would be considered mostly at fault.

The issues to be resolved are:
Was the Claimant wholly at fault?
If not, is there any contributory negligence on the part of the Claimant?
If so, what is the extent of the contributory negligence on the part of the Claimant? Was the Claimant wholly at fault?
The assessment involves a comparison of both the Claimant's and the Insured Driver's culpability (in the sense of the degree of departure from the standard of care of a reasonable person) and the relative importance of the act of the parties in causing the damage: see eg. Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494. In that case the judgment of the Court provides:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
The Insurer made reference to various Road Rules, the Claimant did not take issue with the application of those road rules.
The Claimant advanced the argument that she was not wholly at fault on the basis that:
the CCTV footage does not depict the Insured driver crossing over into her lane and clipping her rear mirror; and/or
that the accident was caused by the insured driver swerving into her lane.
As noted above, I have not found either of the matters relied upon by the Claimant to have occurred.
I do not find that there was any negligence on the part of the Insured Driver.

I find that in the circumstances of this accident, the Claimant was wholly at fault.
Within the terms of section 3.11(a) the motor accident was caused wholly by the fault of the person, being the Claimant.
Within the terms of section 3.28(a) the motor accident was caused wholly by the fault of the person, being the Claimant.
Having reached the conclusion that the Claimant was wholly at fault there is no reduction pursuant to section 3.38.

Costs and Disbursements

The parties did not make submission in relation to costs.
I will give the parties the opportunity to address the costs issues following the determination.
At this time, I make no order as to costs.

Conclusion

My determination of the Miscellaneous Claim is as follows:

For the purposes of section 3.11 the motor accident was caused wholly by the fault of the injured person/claimant.
For the purposes of section 3.28 the motor accident was caused wholly by the fault of the injured person/claimant.
Effective Date: This determination takes effect on 13 April 2022.
Legal Costs: The amount of the Claimant’s costs have not been determined.

Legislation

In making my decision I have considered the following legislation and guidelines:
•Motor Accident Injuries Act 2017 (NSW) ("the Act")
•Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020 (delete any that aren't applicable)
•Motor Accident Guidelines/Personal Injury Commission Rules 2021 (delete which is not applicable)
•the Civil Liability Act 2002 (CLA)

[2022] NSWPIC 277

13 April 2022