Ghebryal v QBE Insurance (Australia) Limited
[2023] NSWPIC 545
•17 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ghebryal v QBE Insurance (Australia) Limited [2023] NSWPIC 545 |
| CLAIMANT: | Azza Ghebryal |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 17 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims dispute as to whether the claimant was wholly at fault for the purposes of sections 3.11 and 3.28; claimant alleges the insured driver came from behind her to overtake and collided with the front passenger side of the claimant’s vehicle; insured and independent witness provided version of events that the claimant merged into the roadway from a parked position and in doing so collided with the insured vehicle; claimant unrepresented and did not attend teleconferences or provide written submissions; the claimant provided with numerous opportunities to attend and provide further information; Held – claimant wholly at fault; evidence, on balance of probabilities, supports the insured version of events; no legal costs awarded. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act2017 1. For the purposes of s 3.11 the motor accident was not caused by the fault of another person. 2. For the purposes of s 3.28 the motor accident was caused wholly by the fault of the injured person. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $0. |
STATEMENT OF REASONS
INTRODUCTION
Ms Azza Ghebryal, a 53-year-old female, was injured in a motor vehicle accident that occurred on 20 April 2022 at Mount Druitt, NSW. A dispute has arisen between the parties as to whether the claimant is wholly or mostly at fault for the accident, in accordance with
ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act).
An Application for Personal Injury Benefits (claim form) was subsequently lodged on the insurer of the vehicle the claimant considered to be at fault.
The insurer initially accepted liability for payment of statutory benefits. However, in a notice dated 19 September 2022, the insurer advised the claimant that it denied liability for payment of ongoing statutory benefits after 26 weeks, on account of their determination that the claimant was either wholly or mostly at fault for the accident.
An internal review was requested by the claimant, and the determination affirmed the original decision.
The claimant subsequently lodged an application with the Personal Injury Commission (Commission) for determination of the dispute. The dispute has been allocated to me for determination.
The claimant is self-represented. There has been considerable delay in the matter due to the claimant’s repeated failure to attend numerous scheduled teleconferences and/or respond to requests to identify appropriate times/dates for a teleconference to occur.
Directions dated 4 June 2023 were issued to the parties, which directed the claimant to attend the scheduled teleconference on 29 June 2023. I indicated that if the claimant failed to attend I would likely determine the dispute on the papers before me without further notice.
I am advised by Commission staff that repeated attempts to contact the claimant were made regarding the teleconference. I understand that staff spoke to the claimant on the day of the teleconference, however, the claimant forewarned that she may not attend.
The claimant failed to attend the scheduled teleconference. Consequently, I decided to determine the matter on the papers.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and the reply and all additional material provided by the parties.
LEGISLATIVE FRAMEWORK
Section 3.11 of the MAI Act provides as follows:
“(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 of the MAI Act provides as follows:
“(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.”
Pursuant to Schedule 2, cl (3)(d) and (e) of the MAI Act, disputes relating to ss 3.11 and 3.28 are declared as miscellaneous claims assessment matters for the purpose of Part 7 of the MAI Act.
Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment.
CIRCUMSTANCES OF THE ACCIDENT AND SUMMARY OF EVIDENCE
Claim form
The claimant provided a description of the accident as follows: “I was driving along Methven St around 12.30 when a car came from behind to overtake me. My car sustained damage.”
A diagram is provided by the claimant that suggests the insured vehicle moved around the right side of the claimant’s vehicle and collided with the front passenger side of the car.
NSW Police material
The insurer has obtained a copy of the NSW Police documentation relevant to the motor accident, through a Government Information (Public Access) Act 2009 request (made by factual investigators, Brooksight Investigations).
The file confirms that both the claimant and the insured driver separately reported the motor accident. The insured driver, Nasrin Ramezani, called police to the scene. On arrival, the claimant was no longer at the location. The claimant attended Mount Druitt Police Station later that night to report the accident.
The police noted that the versions of events are conflicting and that they were unable to “determine an offence” and therefore the case was closed. The “COPS” report records two different versions of events. The first records the insured driving east on Methven Street when a collision ensued with claimant’s vehicle as it moved into the roadway from being parked on the side of the road. It is stated that the claimant then reversed back towards the gutter and attempted to drive along Methven Street, however, collided with the insured again. It is stated that the claimant then drove away from the scene without providing details. The insured called police to the scene and was treated by ambulance officers.
The claimant’s version suggests that the insured attempted to overtake her vehicle from behind and was travelling in the opposite lane and then moved back into the lane colliding with the claimant’s vehicle at the front driver’s side. The claimant alleges she provided details to the insured, however the insured refused. The claimant later reported the motor accident at the Mount Druitt Police station. The report records the claimant stating that she recalls the accident occurring in the vicinity of the Orthodox Church on Methven Street.
The file also includes a copy of a hand written “notebook” statement of the claimant taken on 26 April 2022. It appears to be signed by both the police officer and the claimant. It records the location of the accident as the Orthodox Church on Methven Street. The version states relevantly:
“The lady she took over my car. We were driving at 50km/h. I was driving east. A car come from behind me and overtook on the right. The other car has then hit my car on the front drivers side. The driver stopped and I said “you hit me” she said “you were parking”. I said I wasn’t parking. I asked her to swap details and she has said no. She asked for my details and took them. She refused to provide me with details. I then left because I needed to go. She was still there because she had a flat tyre.”
The file includes photographs of both the claimant’s and the insured’s vehicle.
The damage to the insured vehicle (white Ford Kuga station wagon) is situated on the front passenger side panel. The tyre is flat and the wheel appears to be damaged.
The damage to the claimant’s vehicle (2013 white Toyota Aurion sedan) is situated on the front driver’s side panel over the front wheel. There also appears to be scrap type marks to the back driver’s side corner of the vehicle.
Signed statement of the claimant dated 1 September 2022
The statement was obtained by the insurer’s factual investigators, Brooksight Investigations.
The claimant states that on the day of the accident she was parked outside the Orthodox Church at Methven Street, Mount Druitt. She states that she got into her car and started to drive west on Methven Street. She was travelling about 45 kmph and after about 50m, the insured travelling behind her ran into the back driver’s side of her car. It is stated that her car scraped along the driver’s side of the car.
The claimant states that she stayed in her car and the insured driver came to her. The claimant states that the insured driver was yelling and said to the claimant: “Why you stop?”. The claimant replied that she did not stop, and that the insured had hit the back of her. It is alleged the insured refused to provide the claimant with her details.
The claimant states that she reported the accident to Mount Druitt Police station about a week after. She states that she did not sign anything. She states that police attended her house and dropped off details of the insured driver. She has not heard from the police again.
In respect of property damage to the vehicle, the claimant states she called her insurer and was told she would need to pay an excess. Instead she had a friend fix the car for $1,000.
The claimant denies being at fault and states that the insured ran into the back of her.
In a diagram attached to her statement the claimant indicates damage to her vehicle being situated at the back driver’s side corner, some damage to the driver’s side passenger panel and the driver’s side front panel over the front wheel.
Signed statement of insured driver, Nasrin Ramezani, dated 1 September 2022
This statement was also obtained by Brooksight Investigations.
The insured states that she was driving with her 13-year-old son as a passenger in the front passenger seat. It was around 12.30pm when she was travelling at about 40 to 45 kmph east on Methven Street, Mount Druitt. She states that a white car suddenly pulled out from the kerb side to the left and collided with the front left tyre and passenger car of her door. She states that she immediately stopped and the vehicle reversed very quickly, stopped and went forward again and hit her car in the same spot.
The insured states the tyre deflated and there was some panel damage around the wheel. She states the claimant started to drive off and her son took a photo of the car. She states that the claimant eventually had to stop as a car was blocking the road. The insured then got out of her car and saw the other driver was a female, and her son took a photo.
It is stated by the insured that the claimant wound down her window a bit and when the insured asked for her licence the claimant stated “no. fuck off” and was allegedly screaming and seemed “out of control”. She states that the claimant then drove off without exchanging details.
In respect of damage to the claimant’s vehicle, the insured states that she didn’t notice damage, but if there was any it would be to the front right of her car.
The insured states that at the scene of the accident she spoke to a male person who provided his phone number and said that he witnessed the accident.
A diagram provided by the insured driver depicts the claimant moving from the side of the road colliding with the front passenger side of her vehicle.
Whilst the statement suggests copies of the photographs taken by the insured driver’s son were provided, they are not provided with the copy of the statement before me. However, they do appear within an expert report summarised below.
Signed statement of witness, Mark Atiah, dated 28 November 2022
This is also a statement obtained by Brooksight Investigations.
The witness states that he was driving his vehicle east along Methvan Street at around 12:30pm. He noted a lady driving a white Ford Kugar behind him. He states that they were both travelling at around 30kmph. He then states:
“…I passed a lady driving a white Toyota Aurion sedan. This lay was parked on the left-hand kerb and was reversing out of her parking space. I don’t think she had an indicator on to pull out. She started to pull out onto the road in reverse and nearly hit my car. I had to swerve to miss her. Then the car that was behind me got hit by the Toyota Aurion as it pulled out. I think it was the rear driver’s side of the Toyota Aurion that hit the front passenger wheel or door of the white Ford Kugar Station.
The accident caused the front passenger side of the white Kugers tyre to deflate. I saw there was some panel damage as well around the front passenger wheel of the white Kuger. I saw a bit of damage on the driver’s side of the white Toyota Aurion.
The lady in the white Toyota Arion did not stop. She just drove off up the street. I saw the lad in the white Ford Kuger had a passenger in the front seat who was her young son.
I was unable to get the registration number of the Toyota Aurion as she drove off. As she was driving off, she had to stop for some traffic further up the road. I saw the lady from the white Ford Kuger get out of her car and speak to the driver of the Toyota Aurion who was still in her driver seat. I couldn’t hear what they were saying. Then the lady in the white Toyota Aurion drove off.” [sic]
Transcript of interview with Constable Hunt dated 16 September 2022
The interview occurred between the constable and an investigator of Brooksight Investigations.
Constable Hunt explains that she became aware of the accident through a triple zero call and she attended the scene around 30 minutes after the accident. The Constable noted the insured vehicle was on the roadway at Methven Street and was unable to move due to the wheel damage. She obtained the insured driver’s version of events through a body warn camera. The constable told the investigator that she was not able to recall what was said.
However, the constable did produce the narrative that is included in the NSW Police COPS report that is summarised above. She confirms that such narrative is based on what the insured driver told her at the scene of the accident. The insured was being treated by the ambulance crew.
Forensic reconstruction repot of “FAIR” (Forensic Accident Investigation & Reconstruction Pty Ltd) dated 8 December 2022
This report was commissioned by the insurer. The author was asked to conduct a photographic review of both vehicles to determine if the collision occurred in the manner reported by the insured, or in the manner reported by claimant.
In short, the author opined that the damage to the vehicles is consistent with the insured driver’s version of events.
It is stated in the report that the damage to the insured vehicle was disabling to the front nearside, with the nearside tie rod end shaft having snapped. Contact damage is noted to commence upon the vehicle’s front nearside bumper cover and headlight lens in the form tyre scuffs along with mild front mudguard panel contact and induced distortion that ultimately resulted in contact with the leading edge of the nearside front door.
It is stated that the damage does not suggest that the rest of the insured vehicle’s nearside had contacted or scraped along the claimant’s vehicle. It is concluded that the damage is “…consistent with the insured’s version of collision particularising that the third party had drawn out from a parked position at the kerb into the path of her passing vehicle”.
The report includes a copy of a photograph of the claimant’s vehicle as it drove away from the collision purportedly taken by the insured driver’s son (as mentioned above). Also provided is a copy of a photograph purportedly of the claimant seated in her vehicle that was also apparently taken by the insured driver’s son immediately after the motor accident.
The author of the report notes the black scuff marks to the right back corner of the claimant’s vehicle and notes that it is not possible to determine whether those marks are pre-existing.
It does not appear that the authors of the report were provided with a copy of the photographs of the claimant’s vehicle that is included in the NSW Police file.
SUBMISSIONS
Claimant’s submissions
I do not have any written submissions of the claimant before me. In addition, despite numerous teleconferences having been scheduled, the claimant has failed to attend and as such I also was not provided with any oral submissions in support of the application.
Insurer’s submissions dated 12 December 2022
The submissions largely consist of a summary of the background of the dispute and of the evidence.
The insurer relies on the FAIR report and the witness statement of Mr Atiah in submitting that the evidence demonstrates that the damage on both parties’ vehicles is inconsistent with and does not support the claimant’s version of events.
It is submitted that the evidence supports a finding that the claimant was wholly or mostly at fault for the accident.
FINDINGS AND REASONS
Having considered the evidence before me, that the version of events provided by the insured more likely reflects the truth in respect of how the motor accident occurred.
The claimant has failed to attend any teleconferences, has not provided any written submissions. However, her version of events is set out in her claim form, police material and her signed statement provided to the insurer’s investigators.
It is noteworthy that the claimant’s version of events changes significantly. The version included in the claim form, and that provided to police makes a suggestion that the insured driver attempted to overtake her vehicle and then verged back to the left and collided with the front driver’s side of her car.
However, several months later she advised investigators that the insured collided with the rear of her car and then scraped along the driver’s side of the car.
Further, I find the claimant’s suggestion that the insured driver failed to provide her details as implausible on the evidence. I find that the more likely scenario aligns with the insured driver’s account that the claimant attempted to drive from the scene and thereafter refused to provide her details. This is consistent with the details recorded by the police from the insured driver’s version of events at the scene and is also consistent with the photographs provided by the insured driver, purportedly showing the claimant’s vehicle driving ahead at the scene of the accident and also of the claimant seated in the driver’s seat of her vehicle.
It was not until approximately a week later that the claimant approached police, which to my mind is illogical in a situation where the other party involved in an accident refused to provide details. It is also not explained why the claimant failed to take down the registration number of the insured vehicle, when it is confirmed that a conversation took place and therefore an opportunity arose for her to record such detail, even if the person refused to provide further details.
Overall, therefore, on the basis of the above, I consider the claimant to be an unreliable witness.
On the other hand, the insured driver’s version of events as set out in the statement to investigators is entirely consistent with the details of her version recorded by the NSW Police. It is also broadly consistent with the independent witness. Whilst there are some minor differences (such as travel speed) the essential facts are consistent that the claimant merged into the roadway from a parked position and in doing so collided with the insured vehicle.
Furthermore, the damage to the vehicles is consistent with the version of events provided by the insured. The claimant’s latest allegation that her vehicle was hit from behind is not consistent with the damage to the front passenger wheel arch and wheel of the insured vehicle and the damage to the front driver’s side panel of the claimant.
Whilst there are some dark scuff marks at the driver’s side corner of the claimant’s vehicle, there is no way to tell whether such damage was pre-existing.
As such, I find that the claimant failed to keep a proper lookout and proceeded onto the roadway, when it was unsafe to do so, and failed to give way to oncoming traffic.
There is no evidence before me that suggests that the insured could have reasonably avoided the motor accident occurring.
It follows, therefore, that I find the claimant to be wholly at fault for the subject motor accident.
COSTS
As a regulated miscellaneous claims assessment matter under Schedule 1, cls (3)(2)(d) and (e) of the Motor Accident Injuries Regulation 2017 (Regulation), legal costs may be awarded.
Schedule 1, cl (3)(1) of the Regulation provides that the maximum costs for legal services provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units.
I am not precluded from awarding costs in favour of the claimant merely on the basis that I have found against her. However, the claimant is not represented and therefore I make no award for legal costs.
CONCLUSION
For the purposes of s 3.11 the motor accident was not caused by the fault of another person.
For the purposes of s 3.28 the motor accident was caused wholly by the fault of the injured person.
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Regulation, is $0.
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