Gazal v QBE Insurance (Australia) Limited
[2021] NSWPIC 492
•1 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Gazal v QBE Insurance (Australia) Limited [2021] NSWPIC 492 |
| CLAIMANT: | Victoria Gazal |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 1 December 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims assessment; wholly or mostly at fault; section 3.28 of the Motor Accident Injuries Act, 2017; driver of motor vehicle in shopping centre car park collided with pole when blinded by sun; Held – not no-fault accident; claimant not wholly at fault; accident combination of sun shining into eyes and negligence of claimant; Podrebersek v Australian Iron and Steel applied; claimant failed to stop or slow her vehicle when knew vision impaired by sun and aware of presence of pole; claimant guilty of contributory negligence; contributory negligence greater than 61%; claimant mostly at fault. |
| DETERMINATIONS MADE: | The findings of the assessment of this dispute are as follows: 1. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the claimant. 2. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1881 inclusive of GST. 3. A brief statement of my reasons for this determination are attached to this certificate. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
INTRODUCTION
Ms Victoria Gazal (the claimant) sustained injury in a motor vehicle accident on 12 May 2020 (the accident).
The dispute is whether for the purposes of section 3.28 of the Motor Accident Injuries Act 2017 (the MAI Act), the claimant is not entitled to receive statutory benefits after 26 weeks because she was wholly at fault for the accident.
The claimant completed an Application for Personal Injury Benefits dated 3 July 2020 in respect of injury sustained in the accident.
On 29 May 2020 QBE Insurance (Australia) Limited (the insurer) declined liability for payment of statutory benefits following the first 26 weeks after the accident on the basis the claimant was wholly at fault for the accident.
On 5 November 2020 an application for an internal review was submitted by the claimant.
In an Internal Review Decision dated 26 November 2020 the insurer confirmed the decision that the claimant was wholly at fault for the accident on the basis she failed to keep a proper lookout resulting in a collision with a pole.
As a result of this decision the claimant was not entitled to weekly payments of statutory benefits[1] or benefits for treatment and care[2] more than 26 weeks after the accident.
[1] s 3.11(1)(a) Motor Accident Injuries Act 2017 (MAI Act).
[2] s 3.28(1)(a) MAI Act.
The claimant lodged an application in respect of a Miscellaneous Claims Assessment on 6 August 2021.
The claim was the subject of a teleconference on 24 September 2021 and on 18 October 2021. Both parties agreed it was appropriate for the matter to be determined on the papers.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (the PIC) was established on 1 March 2021 and the Dispute Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020.
I am a Member of the Motor Accidents Division of the PIC. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident clause 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
DOCUMENTS CONSIDERED
I reviewed the following relevant documents:
(a) report of NSW Ambulance Service dated 5 June 2020;
(b) Application for Personal Injury Benefits dated 15 May 2020;
(c) liability decision of QBE dated 29 May 2020,
(d) Application for Internal Review dated 5 November 2020;
(e) Internal Review Decision dated 26 November 2020;
(f) Police Report Event Reference No.76576177;
(g) statement of Victoria Gazal dated 28 April 2021;
(h) ED Discharge Referral (Bankstown-Lidcombe Hospital);
(i) report of Dr Jonathan Herald dated 28 September 2020;
(j) Initial Rehab Needs Assessment report dated 9 June 2020;
(k) insurer’s submissions dated 15 September 2021;
(l) supplementary statement of the claimant dated 5 November 2021;
(m) a diagram of the car park entry and the pole;
(n) four photographs of the claimant’s care;
(o) two photographs displaying injury to the claimant’s face;
(p) claimant’s submissions dated 5 November 2021; and
(q) insurer’s further submissions dated 24 November 2021.
THE RELEVANT LAW
Section 5.1 of the MAI Act defines a no-fault motor accident as one not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and caused by the fault of any other person.
Section 5.4 of the MAI Act states:
“(1) There is no entitlement to recover damages because of the operation of this Part in respect of the death of or injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver.
(2) The death of or injury to a person is taken to have been caused by an act or omission of the driver for the purposes of subsection (1) even if—
(a)the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or
(b)the act or omission was involuntary, or
(c)the act or omission was not the sole or primary cause of the death or injury.”
Section 3.28 of the MAI Act states:
“(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%.
(3) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
Section 5R of the Civil Liability Act 2002 (CLA) sets out the principles that apply in determining the question of contributory negligence. Subsection 5R(2) provides the following:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time
THE EVIDENCE
Application for personal injury benefits
In her Application for personal injury benefits the claimant described the accident as follows:
“ I entered the car park from Stacey street as I turned the sun hit my eye I saw the pole I moved away but it seems I didn’t move enough so I crashed in it(sic)”.
Report of NSW Ambulance Service
The report of the NSW Ambulance Service includes, inter alia, the following history:
“…pt states at approx. 0800hrs was driving car in car park of a shopping centre at approx. 15kmph, was attempting to park, states she was unable to see due to the sun in her eyes and car ran into a light pole pt states headstrike to sun viser, nil airbags deployed, was wearing seat bell, nil LOC, self extricated from her car.” [sic]
Police Report
Police attended the scene of the accident. The Police Report contains the following narrative:
“About 9.20am on Tuesday the 12th of May 2020, the driver was travelling approximately 15 km/h in a sign posted 10km/h zone at Bankstown Central Shopping Centre carpark when she collided with a light pole. As a result of the collision, the driver sustained a laceration to the head and was transported to Bankstown Hospital.”
Bankstown Hospital Discharge Referral
The Discharge Referral of Bankstown Hospital contains the following admission summary:
“Thank you for your ongoing care of Victoria Gazal, a 54-year-old woman who presented to the Bankstown Emergency Department on 12/05/20 following a motor vehicle accident this morning in a parking lot, during which the sun obstructed her vision momentarily and she drove into a pole. She sustained a 12 cm right frontal head laceration to the level of the subcutaneous tissue. She also complained of some ongoing left neck pain.”
Statement of the claimant
The claimant provided a statement dated 28 April 2021. Adopting the numbering used in her statement she provided the following narrative of the accident on 15 May 2020:
“4. On this day at around 8.30 am I turned left from Stacey Street, Bankstown into the Bankstown Centro Car Park.
5. I was driving at a speed of around 20 km/hour.
6. I had a green light from Stacey Street to turn into the car park.
7. There were not many cars in the car park at the time.
8. When turning from Stacey Street into the car park it is necessary to veer right. As I turned right to find parking near the door, I was then facing the direction of the sun and the sun hit my eyes.
9. I already had the sun guard down, however, it did not shield my eyes from the sun.
10. The effect of this is that my vision was immediately impeded by the sun. I could see a pole in the car park which I steered to avoid.
11. However, the pole had a cement base which was significantly wider than the top of the pole. The sun prevented me from seeing the cement base.
12. As a consequence, I did not steer far enough away from the cement base to avoid a collision.
13. There was a matter of seconds between the sun hitting my eye and the collision with the cement pole.
14. As I steered to the left, the front right hand side of my car impacted very heavily with the cement base of the pole. I could not get out of the car and needed a young lady to help me out of the car. She also called a tow-truck for me.
15. I sustained injuries including a left shoulder injury, neck injury, psychological injury, as well as a head injury. My injuries are well documented and I note the insurer has determined that I have a “non-minor’ injury and paid for left shoulder surgery.”
Supplementary statement of the claimant
In her supplementary statement the claimant stated she cannot be precise about her speed at the time of the collision but believes it may have been about 10 kmph. The claimant states she told the police her speed would have been around 10-15 kmph. Whilst she was not looking at the speedometer the claimant says she slowed down when the sun hit her eye leading her to believe it was more likely she was travelling at 10 kmph at the time of impact. The claimant states the speed estimate in her previous statement of 20 kmph related to her speed before she entered the car park.
The claimant said she provided the diagram to her solicitors and it is this diagram which has now been furnished to the PIC. The dotted line into the entrance of the car park represents the claimant’s direction of travel as she entered the car park.
The series of “X”s shown on the diagram represent the point at which the sun began shining into her eyes which occurred immediately after the claimant turned a corner in the car park.
The claimant referred to the photographs of her car and notes that the front driver’s side collided with the cement base of the pole.
Report of Dr Jonathan Herald
In his report dated 28 September 2020 Dr Herald stated the claimant was driving her car and unfortunately the sun reflected in her eyes and she swerved and hit a pole.
Dr Herald was treating the claimant for injury to her left shoulder and neck.
The insurer’s position
The insurer submits that the accident was caused wholly by the claimant’s failure to keep a proper lookout, adjust her driving, maintain adequate control of her vehicle and exercise due care in the use or operation of her motor vehicle, resulting in her collision with a pole.
The insurer also notes the claimant was driving in excess of the 10 kmph speed limit at the time of the accident. The claimant stated she was driving at a speed of 20 kmph in her statement, whilst the police report and the ambulance report both recorded a speed of 15 kmph.
The insurer submits the accident was clearly caused by the fault of the claimant and the accident does not constitute a blameless accident.
The insurer notes that the photograph of the pole show that it is located in between the marked car park lanes suggesting that the claimant’s vehicle must have passed ‘over a marked car park’ before making contact with the pole.
The insurer also notes that the diagram provided by the claimant demonstrates that the claimant continued to move her vehicle forward for a ‘not insignificant period of time after her vision was impaired’. The diagram depicts the pole as directly in front of the claimant’s vehicle and arguably, the claimant was experiencing a high degree of vision impairment in the moments leading up to the collision but continued to drive her vehicle forward.
The insurer states the claimant was wholly at fault, or in the alternative, mostly at fault for the following reasons:
(a) the claimant failed to keep a proper lookout;
(b)the claimant failed to maintain proper control of her vehicle so as to avoid the presence of a pole in the carpark;.
(c)the claimant failed to brake or slow down when approaching the pole;
(d) the claimant failed to drive in an appropriate manner according to the conditions;
(e)the claimant has failed to exercise sufficient care for her own safety in circumstances where the risks were identified and foreseeable; and
(f) the claimant failed to travel under the posted speed limit.
The claimant’s position
The claimant concedes the accident is a motor accident within the meaning of the MAI Act. The claimant submits the accident was a no-fault accident under Part 5 of the MAI Act, or in the alternative that the claimant was not wholly or mostly at fault.
The claimant notes the insurer bears the onus of establishing under section 3.28 that the claimant was wholly or mostly at fault for the accident.
The claimant submits her vision was impeded by the sun at the time of the collision. Furthermore, that the structure of the pole is unusual in that the cement base is disproportionately larger than the pole itself, making it difficult to see even without obstruction by the sun.
The claimant says the sole cause of the accident was the “involuntary impairment of her vision by the sun”. In submitting the accident was a no-fault accident the claimant relies the decision of the Court of Appeal in Davis v Swift[3] where the court considered the blameless accident provisions of the Motor Accidents Compensation Act 1999 (the MAC Act) as follows:
“[33]The circumstances in which an incident or accident may be a "blameless accident" are varied. They include (as the Second Reading Speech makes clear) where the driver has been incapacitated from continuing in careful control of the vehicle because of some unforeseen and immediately debilitating illness or medical condition. Specific examples are provided by the facts in Smith v Lord [1962] SASR 88 (where the driver suffered a blackout and lost control of his vehicle which then collided with a stationary motor vehicle) and in some of the cases referred to by White J in Leahy v Beaumont (1981) 27 SASR 290 at 294 - 296.
[34]The owner and driver may be without fault in circumstances where the driver loses control because of some catastrophic failure of a component of the vehicle which involves no negligence in its care and maintenance. They may also be without fault because an event or incident on or in the vicinity of the roadway (such as an animal running on to the roadway) results in the driver losing control, or having to take evasive action, and causing an incident or accident involving injury.
[35]In these cases, notwithstanding that the driver may have lost control of the vehicle or otherwise driven in a way that caused an accident and injury, there was no fault involved in his or her doing so. On the other hand, any person injured as a result of that accident may, by his or her lack of care, have contributed to its occurrence and the injury which it caused.
[36]As was the position in Axiak, the position in this case is that the "blameless accident" is not one in which the driver has failed to continue in careful control of his or her vehicle or had to take evasive action which resulted in the accident. In each case, there was no driving that in other circumstances would have involved fault. There was, however, contributory negligence on the part of the person injured.”
[3] [2014] NSWCA 458
Further, the claimant submits even if the insurer was able to establish any of the allegations of negligence, they were not causative of the accident. The claimant addresses each of the allegations of negligence individually.
The claimant does not concede she was travelling at a speed 5 kilometres per hour over the posted speed. In any event it is submitted the insurer has not established that speed was causative of the accident, which was inevitable, regardless of speed.
There is no dispute the claimant’s sun visor was down. The claimant submits this is indicative of the obstruction caused by the sun and shows the claimant had taken all reasonable precautions available to her.
The claimant disputes she failed to keep a proper lookout. She attempted to steer her vehicle away from the pole, however, through no fault of her own, the sun hitting her eyes prevented her from seeing the base of the pole.
The claimant submits that there was no failure on her part to brake or slow down when approaching the pole which was causative of the accident. The claimant submitted her decision not to stop her vehicle was reasonable where she believed she could avoid striking the pole.
It is submitted the claimant was driving in an appropriate manner according to the conditions, in that she had slowed down, she attempted to steer away from the pole, and she had her sun visor down to reduce the interference of the sun.
Even if I am not satisfied the accident was a no-fault accident the claimant submits any contributory negligence would be less than 62% for the following reasons:
(a) the claimant was not travelling at significant speed;
(b) the shape of the pole was unusual, in that the circumference at the wheel height was greater than at eye height making it difficult to identify the hazard;
(c) the sun momentarily blinded the claimant; and
(d) the claimant had taken steps to guard against the risk of vision impairment from the sun by deploying her sun visor.
Was the accident a no-fault accident
I find the claimant was injured in an accident involving the use or operation of a motor vehicle in accordance with s 1.4 of the MAI Act.
The definition of no-fault accident in section 5.1 of the MAI Act is in similar terms to the definition of ‘blameless accident’ in section 7A of the MAC Act, the forerunner of the MAI Act. Section 7(E) of the MAC Act is in similar terms to section 5.4 of the MAI Act.
Whilst I note the claimant’s reliance on Davis v Swift[4] I am not satisfied there was no fault by the claimant. Indeed, I consider the actions of the claimant in failing to stop or steer her vehicle away from the cement base of the pole contributed to the accident.
[4] [2014] NSWCA 458
In Hossain v Mirdha[5], the plaintiff braked and swerved to avoid a dog that ran onto the road, causing the plaintiff’s vehicle to collide with a stationary truck. Elkaim DCJ held that the act of steering the vehicle away from the dog was an avoidance measure which amounted to an act of causation disentitling the plaintiff to damages under section 7(E) of the MAC Act. His Honour also noted that even if the driver’s act of steering was merely a reaction or even involuntary, he would still be disentitled to recover damages because of section 7(E).
[5] [2015] NSWDC 108
The circumstances of this accident are not dissimilar to the facts in Hossain. The claimant conceded she saw a pole in the car park which she steered to avoid, although she failed to steer far enough away from the cement base to avoid a collision.
That act of steering to avoid the pole was either an act or omission by the claimant which, whilst not the sole or primary cause of the injury, undoubtedly contributed to the injury in accordance with section 5.4 of the MAI Act. On this basis I find the accident was not a no-fault accident
Was the claimant wholly or mostly at fault
Noting this was not a no-fault accident was the claimant wholly at fault for the accident?
In Manley v Alexander[6] the majority in the High Court stated at [12]:
“...the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what his happening in the vicinity of the vehicle in time to take reasonable steps to react to those events…”
and
"Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.”[6] [2005] HCA 79; 80 ALJR 413
I have no hesitation in accepting that the sun shining into the claimant’s eyes contributed to the accident, noting this is consistent with contemporaneous records, namely the version of events recorded by the NSW Ambulance Service, by Bankstown Hospital and in the Application for Personal Injury Benefits, completed three days after the accident.
I am not satisfied the claimant was wholly at fault for the accident where it is clear the position of the sun impeded her vision and led her to misjudge the distance it was necessary to maintain to avoid a collision with the cement base of the pole.
I find the accident occurred because of a combination of the sun shining into the claimant’s eyes and the negligence of the claimant.
If the claimant was not wholly at fault did the claimant contribute to the cause of the accident?
The duty to take reasonable care was reiterated in Vairy v Wong Shire Council[7][2005] HCA 34, 59 ALJR 492. The Court stated that the duty of the driver of a motor vehicle to users of the roadway is to take reasonable care for their safety having regard to all the circumstances of the case.
[7] [2005] HCA 62; 80 ALJR 1;(2005) 223 CLR 422.
It is clear from the diagram that the sun began shining into the claimant’s eyes some distance before her vehicle reached the pole, and even though her vision was impeded by the sun the claimant, who was aware of the presence of the pole, continued to move her vehicle forward. This is more than a “momentary” blindness caused by the sun. I do not consider deploying the sun visor was sufficient to constitute the exercise of reasonable care by the claimant.
The risk of harm was foreseeable and a reasonable person in the claimant’s position ought to have exercised reasonable care for her own safety by slowing the speed of her vehicle, by reversing her car, by bringing her vehicle to a stop or by steering her vehicle in another direction entirely, noting she was aware of the presence of the pole nearby and where the accident occurred at about 8.30 am in a shopping centre car park.
I am satisfied the claimant contributed to the cause of the accident.
In that event, what is the degree of the claimant’s contributory negligence, keeping in mind that a finding of contributory negligence greater than 61% means that the claimant was mostly at fault?
In Podrebersek v Australian Iron and Steel[8] the High Court at [10] stated:
“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 …and cases there cited. 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 significance of the various elements involved in such an examination will vary from case to case.”
[8] (1985) 59 ALR 529
In assessing the degree of departure from the standard of care of the reasonable person, I am of the view the contributory negligence of the claimant is greater than 61%. I reach this view for the following reasons:
(a) the pole was situated between the two parking spaces;
(b) the claimant was aware of the presence of the pole;
(c) the claimant was aware of the sun shining into her eyes impairing her vision for some distance prior to the point of collision;
(d) the claimant steered her vehicle and in doing so collided with the pole; and
(e) the claimant failed to stop or slow her vehicle her vehicle when she knew her vision was impaired by the sun and where she was aware of the presence of the pole.
CONCLUSION
I find pursuant to s 3.28 of the MAI Act that the claimant was mostly at fault for the accident and is disentitled to receive ongoing benefits under section 3.28 of the MAI Act.
COSTS
The claimant seeks an order for regulated costs. The insurer concedes regulated costs should apply to this application.
I note success is not a prerequisite to the claimant recovering regulated costs from the insurer. I consider the claimant is entitled to recover from the insurer reasonable and necessary costs.
This is a miscellaneous claims assessment matter and pursuant to clause 3(1) of Part 1, Schedule 1 of the Motor Accident Injuries Regulation 2017 (NSW) the maximum costs for legal services provided to a claimant in connection with an assessment under Division 7.6 of the MAI Act involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units.
The current value of a monetary unit is $106.89 and, therefore, the fee for a single miscellaneous claim assessment matter is $1710.24 plus GST. I find the claimant is entitled to recover these costs from the insurer.
Susan McTegg
Member (Motor Accidents Division)
Personal Injury Commission
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