Green v QBE Insurance (Australia) Limited
[2024] NSWPIC 423
•7 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Green V QBE Insurance (Australia) Limited [2024] NSWPIC 423 |
| CLAIMANT: | Jonathan Eric Green |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 7 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; insurer denied liability for ongoing statutory benefits pursuant to sections 3.11 and 3.28 on the basis that the claimant was wholly or mostly at fault; claimant riding motor scooter before dawn on approach to the Harbour Bridge when he collided with the unmarked end of a median strip as he changed lanes; police investigations revealed a length of the median strip had been removed as part of roadworks allowing motorists to change lanes and that after the accident steps were taken to alert motorists to the median strip and prevent motorists from changing lanes; photographs showed debris in front of the exposed end of the median strip at the time of the accident and some white paint on the median strip; claimant provided statement not challenged by insurer; claimant riding in the dark at 40 km/h with his headlights on and said he could not see the end of the median strip; insurer argued accident caused solely by the fault of the claimant losing control of his motor scooter as he collided with the median strip; assessment of wholly at fault in a single vehicle accident considered; causation considered in terms of concurrent and interdependent causes; Nominal Defendant v Hawkins and Hossain v Mirdha referred to; Held – primary cause of accident was the state of the roadway in particular the unmarked median strip; claimant not wholly at fault; no submissions from insurer on contributory negligence; Member not satisfied there was any contributory negligence. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of Jonathan Green. 2. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of Jonathan Green. |
STATEMENT OF REASONS
INTRODUCTION
Jonathan Green was involved in a motor accident on 20 June 2023. He was riding his motor scooter to work in the early hours of the morning when, on the approach to the Harbour Bridge, he collided with the end of a median strip / lane separator, fell onto the roadway and was injured.
On or about 9 July 2023 Mr Green made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against QBE, Mr Green’s own third-party insurer as there was no other vehicle involved in the accident.
QBE has advised Mr Green he is “wholly or mostly at fault” and they have denied liability to pay benefits beyond the first 52 weeks following the accident.
Mr Green sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. Because the insurer affirmed that decision and the claimant does not agree with it, the claimant has referred the issue of whether he is wholly or mostly at fault to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
The proceedings have been allocated to me. I have held two teleconferences with the parties. At the last of these it was agreed I should determine the matter and that it was appropriate for me to do so on the papers.
LEGISLATIVE FRAMEWORK
Mr Green’s claim for statutory benefits is made under Part 3 of the MAI Act. The statutory benefits that can be paid in that claim include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act, as well as treatment and care benefits pursuant to Division 3.4.
Some injured persons cannot recover any statutory benefits[1] at all, but most people injured in a motor accident in New South Wales are entitled to some benefits. Under s 3.1 of the MAI Act benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident. However, pursuant to ss 3.11 and 3.28, an injured person is not entitled to statutory benefits beyond the first 52 weeks after the accident if the injured person only has threshold injuries (within the definition in s 1.6) or if the injured person was “wholly or mostly at fault” for causing the accident.
While there is no definition of “wholly at fault”, a motor accident is considered to be caused “mostly by the fault” of a person if their contributory negligence is assessed as greater than 61%[2].
The parties agree that Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Mr Green is wholly or mostly at fault in respect of his weekly benefits (schedule 2, cl 3(d)) and whether he is wholly or mostly at fault in respect of his treatment and care benefits (schedule 2, cl 3(e)).
SUBMISSIONS
Insurance company communications
[1] For example, those who have committed a serious driving offence or those who have a workers compensation claim.
[2] Section 3.11(2) and 3.28(2).
On 22 March 2024, QBE wrote to Mr Green advising him that in QBE’s view he was wholly or mostly at fault “as you failed to control your vehicle and failed to operate your vehicle in keeping with the prevailing conditions which resulting in the subject accident.” QBE also said that, “the accident was not a no-fault accident.”
QBE advised Mr Green that his benefits would cease 52 weeks after the accident, that is on 18 June 2024.
QBE summarised a number of documents they used to make the decision all of which are medical documents. QBE did indicate in a separate list of documents that the claim form and the police report had been considered.
On 29 April 2024 at the request of Mr Green, QBE undertook an internal review and affirmed its decision.
QBE said it did not have the complete police documentation about the accident. QBE asked Mr Green “whether you had pursued any other party for damages arising from this accident.” Mr Green advised that he had not. QBE relied on the police report which considered Mr Green was “the responsible party” and that he had lost control of the vehicle because he had not seen the median strip.
Claimant’s submissions
The claimant says in a “brief summary” addressed to the Commission and attached to his application that the photograph of the accident site[3] shows the partially removed median strip was unmarked, that it had a base for a bollard but no bollard in it and there were no safety barriers or warning signs on it or around it.
[3] Later identified as the photograph on page 57 of the insurer’s bundle of documents.
The claimant says the police report suggests that witches’ hats or bollards were set up immediately after the accident marking the division between the lanes.
He says he was travelling well below the speed limit, road works were in place and he was riding in the manner of a reasonable person. He notes the accident occurred before dawn and says that no fine was issued by the police.
Mr Green provided copies of Police records produced under the Government Information Public Access Act 2009 (GIPAA).
Insurance company submissions
The insurer lodged submissions with its reply. While the insurer says at [1.4] it has determined the claimant is wholly or mostly at fault for failing to control his vehicle and operate his vehicle in keeping with the prevailing conditions, the insurer says at [2] it is still investigating the matter.
The insurer says:
(a) police held the claimant responsible [4.3];
(b) the claimant did not see the median strip before he collided with it [4.3];
(c) the claimant merged left when he did not have to [4.4];
(d) the police acknowledged the roadworks and changed conditions but were of the opinion the claimant was at fault [4.5];
(e) the claimant had his headlights on [4.6], and
(f) the photograph from the police file shows the raised white median strip which would have been visible due to the operation of his motorcycle’s headlights [4.8].
The insurer has said the claimant has not followed rule 297(1) of the Road Rules 2014 NSW “A driver must not drive a vehicle unless the driver has proper control of the vehicle” [4.9]. The insurer maintained that the claimant is wholly or mostly at fault [4.10].
The insurer noted its factual investigation was still outstanding and requested the final determination of the dispute be deferred until it had been received.
Claimant’s submissions in response
On 14 June 2024 the claimant uploaded to the portal a document addressed to QBE and which contain his response to the insurer’s submissions. He asked for the opportunity to “present my position orally” and deals with some of the arguments raised by the insurer in its submissions. I have treated this document as the claimant’s submissions to the Commission.
While the claimant accepted that the Police report says he was responsible he says this is an untested opinion of an individual created from a “road usage perspective and not from an insurance perspective”. But in any event, he says that the whole of the police report needs to be considered and that the police officer noted the roadworks, and the insufficient warning of the median strip recommencing may have contributed.
Mr Green notes the insurer has referred to the fact he changed lanes and merged left when he did not need to. Mr Green says he made a legal lane change because the road sign said “tunnel” and it was reasonable for him to believe that was so.
Mr Green refers to the insurer’s submission that the photograph shows the median strip would have been visible with the claimant’s headlights. Mr Green says the “angle of the road” and the median strip “began over a crest” and the beam of the headlights would not sufficiently illuminate the median strip. The claimant also refers to the before and after photographs and the action of the road authority in placing witches’ hats where the median strip had been removed.
Mr Green says that he was in control of his vehicle until he hit the median strip and the Road Rules may not be relevant.
He says the facts do not support that he is wholly or mostly at fault.
Claimant’s final response
After the insurer uploaded its investigator’s report, on 29 July 2024 the claimant uploaded to the portal a document addressed to QBE which contain his response to the report. I have again taken this to be further submissions from the claimant.
Mr Green says that the statement from the police officer in particular answers 61 – 67 “underscore poor safety practices during road work as a contributor [to] the events.” Mr Green recites the police officer’s conclusion the report and distinguishes between the act of colliding with the median strip and the root cause of the collision.
Mr Green again asserts that the police officer’s opinion is untested.
Preliminary conference
At the preliminary conference on 31 July 2024, Mr Campbell for the insurer confirmed that QBE had completed its investigations and maintained that Mr Green was either wholly at fault or mostly at fault.
Mr Campbell said that QBE accepted the evidence contained in Mr Green’s statement. Mr Campbell also agreed that the first photograph in the police file looking up the ramp showed debris on the road and some paint on the median strip. Mr Campbell also agreed that the second photograph taken after the accident showed that the debris had been removed and the median strip had more white paint on it.
REVIEW OF THE EVIDENCE
Claim form
Mr Green’s application for personal injury benefits (claim form) records the claimant’s personal details. He was 58 at the time of the accident and is now 59 years of age.
Mr Green provided a description of the accident as follows:
“On 20 June 2023 at approximately 6.15 am (whilst still dark) I believe I collided with a narrow-unmarked concrete lane divider as I was changing lanes on the northern approach to the Sydney Harbour bridge. The lane divider had no lighting around it or any identification or warning barriers. I was advised by the attending police officer that “witches hats” had been moved which would have alerted motorists. The area was under road construction. Upon colliding with the road barrier, I was flung from my scooter across 3 lanes of traffic, which subsequently stopped to avoid hitting me. I was then taken to Royal North Shore Hospital in an ambulance.”
Mr Green then provides a description of his injuries as follows:
“I have two broken ankles, fractures to my spine, a broken little finger and little toe (both on my right side), substantial bruising and swelling of my back and right side. I also am experiencing headaches, pain (especially in my lower back, ankles and finger), difficulty sleeping (including nightmares) and feel like I am struggling with inconsistent thoughts and feelings. I also struggle to having to rely on my family to meet my daily needs like dressing, showering (as I cannot support my weight without support boots), meals. inconsistent thoughts and feelings. I also struggle to having to rely on my family to meet my daily needs like dressing, showering (as I cannot support my weight without support boots), meals.”
Claimant’s statement
Mr Green gave a statement to the insurer’s investigator. In that statement he says amongst other things:
(a) at [26] “The road conditions had been changing daily due to the road works, and as a result I had decreased my usual speed to what I believe to have been around about 40 kmph”;
(b) at [28] He thought the tunnel was coming up and he had to merge left to get onto the Bridge, “I did not see a narrow unmarked, no lit, concrete lane divider, and I subsequently I collided with it”, and
(c) at [30] He had no time for evasive manoeuvres.
Police report
The police report was completed by Senior Constable Heron. He noted the location of the accident was on the Warringah Freeway 100m north of Alfred Street North. The speed limit was 60 kms and “road works” were noted as a structure on the road. The weather was fine and it was said to be daylight with street lighting off.
The crash summary details were provided by the police as follows:
“At approximately 6:15am on Tuesday 20th June 2023, a motorcycle was riding in a southerly direction on the Warringah Freeway having just entered from Falcon Street. The motorcycle took the left lane intending to ride towards the Harbour Bridge. Approximately 50m North of the Alfred St off ramp, the rider attempted to merge to his left and collided with a concrete median strip. The rider lost control and was ejected from his motorcycle. No other persons or vehicles were involved.
As a result of the collision, the rider sustained injuries and was conveyed to Hospital by NSW Ambulance. The rider was treated for these injuries while at Hospital. Due to on-going road works on the Warringah Freeway, there were changes to the traffic conditions, where a section of the median strip immediately prior to where the Rider collided had been removed. The rider claimed to have not seen the median strip. Motorcycle towed from the scene with damage to the offside and mirrors.”
The records of the police obtained by the claimant and the insurer includes the following additional information[4]:
(a) at the time there were a number of changes to traffic conditions due to road works;
(b) part of a raised concrete median strip had been removed;
(c) ordinarily the on-ramp splits into two with the left side for the bridge and the right side for the tunnel;
(d) ordinarily the left lane has a raised concrete median strip that continues past the Alfred St off ramp separating traffic entering from Falcon Street and southbound traffic already on the freeway which prevents vehicles from merging from one Lane into the other;
(e) a part of this median strip had been removed and “the median strip then recommences without warning … there were no witches hats or other traffic management systems in place … there was also no warning of where the median strip recommenced”, and
(f) after the collision, witches hats were placed along the section of roadway.
[4] Page 47 of the insurer’s additional bundle.
The officer in charge (OIC) says:
“It is the opinion of the OIC that Rider 1 is at fault for colliding with the median strip however the OIC acknowledges that the roadworks/changes to the conditions, and in particular, insufficient warning of the median strip recommencing may have contributed to the collision.”
The insurer’s investigator took a statement from the Police officer. He says:
(a) he got there late, after the claimant had been taken to hospital;
(b) there were roadworks and changes to access;
(c) it was dull and quite dark at the time of the collision, and
(d) the signage was constantly changing.
He also says in answer to questions:
[A39] “To my knowledge, there was no warning of the recommencement of the dividing strip. There was a broken line which was painted leading up to the recommencement of the dividing strip.”
[A41] “Where the dividing strip recommences. I asked the TMC[5] commander was there anything in place there prior to the collision and she said no. There was the base of what looks like the remains of something that may have been there at some stage, but we couldn’t find the remainder of that. So, it looks like to the best of my knowledge there was nothing in place.”
[Q42] “Was that – was the commencement of the concrete dividing strip was it clearly visible? Would it be clearly visible to all traffic? [A42] I don’t think so because initially when it’s new it’s painted, it’s painted with a white paint but that paint was obviously worn over however many years. No. I – I don’t think it’s clearly visible.”
[5] Traffic Management Centre.
There are two photographs from the police file.
The parties agreed the first was taken on the day of the accident and is looking towards Falcon Street (with the Harbour Bridge behind the photographer). The two lanes of the on-ramp are visible. Where the median strip had been is clearly visible and there are white broken lines painted on the road surface where it had been. A part of the median strip can be seen. It has a white stripe painted down each side of the top with a bare patch in between and the end of the median strip is painted white. The side of the median strip that is visible is not painted and there are scuff parks on the white paint. There is rubble at the end of the median strip, what looks like a lump of bitumen and a round circular object that could be the bottom of a bollard.
The second photograph is the view down toward the Harbour Bridge. This was apparently taken later in the day or sometime after the accident. It shows a solid white line and orange and reflective candy canes before the median strip can be seen. Mr Campbell agreed at the preliminary conference that the rubble had been removed from the end of the median strip, it had been painted white and there appeared to be more white paint on it.
CONSIDERATION OF THE ISSUES
Findings of fact as how did the accident occur:
The facts surrounding how this accident happened are not in dispute. The insurer accepts the evidence given by the claimant in his statement. The statement is consistent with the police report and the version of events in the claim form.
I am satisfied on the evidence before me that:
(a) the accident occurred at about 6.15 am and it was dark as was not yet dawn;
(b) the speed limit was 60 kms and Mr Green was not speeding, travelling at about 40 kms per hour and he had his headlights on,
(c) roadworks were in the vicinity and Mr Green was aware of them and adjusted his speed accordingly;
(d) part of the median strip had been removed, debris had been left or accumulated at the end of a part of the median strip;
(e) there was some paint on the median strip but no warning sign, bollards, reflective poles or witches hats erected, and
(f) after the accident, more paint was applied to the median strip, including the end, the debris was removed and candy canes installed leading up to the end of the median strip.
I am satisfied based on the claimant’s unchallenged evidence that the claimant lost control of his motor scooter when he collided with the end of the median strip which he had not seen as he lawfully merged lanes to avoid the Harbour Tunnel and head over the Harbour Bridge.
The insurer made submissions about what the claimant could or should have been able to see with his headlights activated. The claimant referred to a crest and the angle of the road and the beam of his headlights. I do not believe I can make any findings on what the claimant could or could not have seen without expert evidence. I accept Mr Green’s evidence that he did not see the end of the median strip before he hit it because he could not see it clearly in the dark.
Approach to determining whether claimant wholly or mostly at fault
Sections 3.11 and 3.28 of the MAI Act terminate the claimant’s statutory benefits if he is wholly or mostly at fault. The phrase “wholly or mostly at fault” requires consideration of two separate questions:
(a) was the claimant wholly at fault, or
(b) was he mostly at fault
The approach to assessing whether the claimant is mostly at fault is relatively straightforward. Contributory negligence is found in accordance with the provisions of the Civil Liability Act 2002 and s 3.38 of the MAI Act. The degree of contributory negligence is then assessed. If contributory negligence is greater than 61% then the claimant is mostly at fault
The approach to determining whether the claimant is wholly at fault is more complicated particularly in a single vehicle accident.
Section 1.4 of the MAI Act defines fault to include the “tort of negligence” however, the current proceedings are about Mr Green’s entitlement to a statutory scheme of benefits and not a claim for common law damages which is dependent on there being a duty of care owed by one person to another and a breach of that duty by one person causing injury to the other. Mr Green owes no duty of care to himself and therefore considering whether he breached a duty of care or was negligent is not helpful. It is also to be borne in mind that there is no “defendant” in the current proceedings such as the road authority or organisation in charge of the road works and I do not have to consider whether that authority or organisation owed a duty of care to Mr Green and breached that duty of care.
In my view therefore, the way to approach the question of whether the accident was caused wholly by the fault of Mr Green is to consider whether there was anyone or anything that caused this accident other than Mr Green. If there is, then he cannot be wholly at fault.
Was Mr Green wholly at fault?
The insurer has focused on Mr Green losing control of his scooter, falling and being injured. The insurer says this is what caused the accident. Mr Green says that this does not acknowledge the “root cause” of him losing control which was the collision with the median strip that he had not seen. I agree with Mr Green’s submission, the cause of the accident goes beyond Mr Green simply losing control of his motor scooter.
The Supreme Court of NSW in Nominal Defendant v Hawkins[6] dealt with a case involving a projectile that had been thrown at a bicyclist from a moving, unidentified car. Justice Sackville said about causation in that case at [69]:
“… It can be seen from the judgment of Allsop P in McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28, that the authorities have accepted that there can be more than one proximate cause of an event for the purposes of insurance law. His Honour gave as examples cases in which there were two causes of a loss which were ‘concurrent and interdependent in the sense that neither would have caused the loss without the other.’”
[6] [2011] NSWCA 93.
The case of Hossain v Mirdha[7] illustrates this idea of concurrent and interdependent causes. Mr Hossain was injured when he lost control of the car he was driving. He had swerved, lost control and hit a parked car. The reason for swerving and losing control was a dog which had run out suddenly in front of his car. Mr Hossain has swerved to avoid hitting and injuring or possibly killing the dog. Judge Elkhaim (as he then was) found that a cause of the claimant’s injury was him swerving and hitting the parked car but that was not the sole cause and that the primary cause was the presence of the dog darting out on to the roadway.
[7] [2015] NSWDC 108.
QBE does not appear to have considered the primary cause of Mr Green’s accident, that is what caused him to collide with the median strip led to him losing control of his vehicle.
I am satisfied that Mr Green’s accident was caused by him losing control of his motor scooter after he hit the median strip and fell to the ground. I am satisfied that the reason for him hitting the median strip was because he did not see it, and he did not see it because the median strip was poorly marked, not signed or otherwise illuminated and was difficult for him to see in the early hours of the morning. In my view the primary cause of Mr Green’s accident was the state of the roadway at the time of his accident in particular the state of the unmarked median strip.
It follows therefore that Mr Green cannot be wholly at fault.
Was Mr Green mostly at fault?
The insurer has provided no submissions at all concerning Mr Green’s contributory negligence and how it should be assessed.
In determining whether there is any contributory negligence on the part of Mr Green, I must consider section 5R of the Civil Liability Act 2002 which imposes a standard of care as “that of a reasonable person in the position of that person” and that is determined “on the basis of what that person knew or ought to have known at the time”.
In my view a reasonable person in the claimant’s position, riding in the dark on the approach to the Harbour Bridge where there were roadworks and road conditions were changing regularly would have done what the claimant did – attempted to merge left to avoid where he thought he was going – into the tunnel. Had the portion of median strip not been removed Mr Green would have been unable to consider that option, but a reasonable person in the position of the claimant would have seen the opening created by the removal of the median strip and taken the opportunity to merge or change lanes. The end of the median strip was not well painted, there was no warning and debris present. In my view a reasonable person in the position of the claimant with no warning would have likely hit the end of the median strip. I note that apparently steps were taken after the accident to make the end of the median strip more obvious.
I have found that Mr Green was not speeding and in my view, he was keeping a lookout as to where he was going and completed a lawful lane change to ensure he kept going towards the bridge.
I am not satisfied that there is any contributory negligence on the part of Mr Green.
It therefore follows he is not mostly at fault.
CONCLUSION
The motor accident on 20 June 2023 was not caused wholly or mostly by the fault of Jonathan Green.
Mr Green is therefore entitled to statutory benefits beyond the first 52 weeks after the accident.
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