Guntan v AAI Limited t/as GIO
[2024] NSWPIC 160
•3 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Guntan v AAI Limited t/as GIO [2024] NSWPIC 160 |
| CLAIMANT: | Emelie Guntan |
| INSURER: | AAI Limited t/as GIO |
| SENIOR MEMBER: | Williams |
| DATE OF DECISION: | 3 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether accident caused wholly by the fault of the claimant for the purposes of section 3.11 and section 3.28; accident occurred when claimant changing lanes; CCTV footage of the accident; Held – the other vehicle involved in the accident was moving slowly forward and was wholly within its lane when claimant attempted to change from the right to the left lane; while attempting to change lanes, the front right side of the claimant’s vehicle collided with the rear left side of the other vehicle; the collision between the two vehicles occurred as a consequence of the claimant’s failure to exercise reasonable skill and care; the accident was not caused any fault on the part of the other driver; for the purposes of section 3.11 and section 3.28, the accident was caused wholly by the fault of the claimant. |
| DETERMINATIONS MADE: | CERTIFICATE 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the motor accident on 25 November 2020 was caused wholly by the fault of the claimant. 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the motor accident on 25 November 2020 was caused wholly by the fault of the claimant. 3. A statement of my reasons for this determination are attached to this certificate. |
STATEMENT OF REASONS
BACKGROUND
Emelie Guntan was injured in a motor accident at Campbelltown on 25 November 2020 (accident). Mrs Guntan subsequently made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as GIO (insurer).
On 5 January 2021, the insurer accepted liability for the claim for up to 26 weeks from the date of the accident. In a liability notice dated 10 March 2021, the insurer recorded its determination that Mrs Guntan did not cause or contribute to the accident, and that she was not wholly or mostly at fault. On 5 July 2023 the insurer issued a further liability notice in which it informed Mrs Guntan that it had received further information, re-assessed her claim, and determined that she was wholly at fault for the accident. Liability for the claim was denied. The further information referred to in the notice was CCTV footage of the accident and a police report.
Mrs Guntan sought an internal review of the insurer’s decision. On 28 July 2023 an internal reviewer found that Mrs Guntan was wholly at fault for the accident. The insurer’s decision to deny liability for the claim was affirmed.
Mrs Guntan continues to dispute the insurer’s decision that, for the purposes of s 3.11 and 3.28 of the MAI Act, the accident was caused wholly by her fault. She subsequently commenced these miscellaneous claims assessment proceedings[1] in the Commission.
[1] See Sch 2 cl3(d) and (e) MAI Act.
Preliminary conferences
At a preliminary conference held on 23 November 2023, Mrs Guntan confirmed that she disputed the insurer’s decision to deny liability for her claim, and explained that she required further treatment and had lost income. Mrs Guntan confirmed that she wanted her dispute with the insurer about “fault” determined by the Commission.
The insurer was given leave to issue a direction for production on NSW Police and Paul Wakeling Automotive Group P/L (PW Group), the latter limited to CCTV footage of the accident.
The direction for production issued to NSW Police was returnable on 12 January 2024. Because documents were not produced in response to the direction until February 2024, preliminary conferences listed in January and February 2024 were re-scheduled to 27 March 2024. At that preliminary conference, Mrs Guntan confirmed that she had seen the material produced by NSW Police, and that she had viewed the CCTV footage of the accident recorded from a camera located on the premises occupied by PW Group.
Both parties confirmed that other than the material presently before the Commission, there was no additional material they sought to rely on in the proceedings. I informed the parties that I proposed to determine the dispute on the papers. Neither party objected to me taking this course.
ON THE PAPERS
Having considered both s 52 of the Personal Injury Commission Act 2020 and Procedural Direction PIC2, I have concluded that the matters that arise in the proceedings can be determined on the papers. I am satisfied that sufficient information is available to allow me to determine the issues without holding a formal hearing.
LEGAL FRAMEWORK
In accordance with s 3.11 of the MAI Act, an injured person is not entitled to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks[2] after the accident if the accident was caused wholly or mostly by the fault of the person.
[2] Given the date of the accident, the amendments to s 3.11 and s 3.28 made by the Motor Accident Injuries Amendment Act 2022 (Amendment Act) do not apply: s 2 Amendment Act.
Likewise, under s 3.28, an injured person is not entitled to statutory benefits for treatment and care expenses incurred more than 26 weeks after the accident if the accident was caused wholly or mostly by the fault of the person.
The term “fault” used in s 3.11 and s 3.28 means a failure to exercise reasonable skill and care. The burden of proving that, for the purposes of s 3.11 and s 3.28, the accident was caused wholly or mostly by the fault of the injured person, rests on the insurer.[3]
EVIDENCE
[3] Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909 at [45].
Mrs Guntan
Mrs Guntan provided the following version of the accident to police[4]:
“I was travelling south along Blaxland Rd Campbelltown driving a sedan. I was driving in the [right] lane & there was a space in the [left] hand lane. From there I got hit, but I don’t know how or where. My car flew over other cars. I went to the plants at Paul Wakeling car yard…”
[4] Entry in police notebook dated 25 November 2020 at 4.15pm.
In an application for personal injury benefits dated 3 December 2020 Mrs Guntan provided the following account of the accident:
“I was driving home from work at approx. 3.40 PM along Blaxland Road. I was on the right hand lane and was merging to the left lane as I saw it was free and after indicating I suddenly heard & felt I was hit with great impact and went on to hit maybe a kerb on the left. The car flipped in the air uncontrollably and landed on a hedge several meters away from oncoming traffic road on the right side.”
In a signed statement provided to the Commission, Mrs Guntan stated relevantly:
“…on 25th November 2020…. I was driving home…With the moderate traffic condition, just driving approximately 15kph, I indicated to the left, checked my blind spot and the car ahead of me and when it was all clear, moved to the left side. In an in [sic] instant, I felt my car colliding with another car, went on the left gutter uncontrollably, almost hitting the nearby roundabout, going up in the air above the other cars on the other side of the road and landed on the hedge area at the Paul Wakeling, nearby their cars on the yard…”
She continued:
“I believe that the car in front of me moved to the left side of the road at the same time I did, considering the impact - with the right front side of my car against the left back side of the other driver’s car…”
Mrs Guntan stated that she was:
“…driving mindfully and had been a careful driver. I instructed all of our four kids to drive and they have been really good, careful drivers. I gave the police an honest statement with some doubts, unsure how it happened because I did not want to tell lies…”
Mrs Guntan’s statement also includes details of her post accident treatment and the difficulties she has experienced as a consequence of injuries she sustained as a result of the accident.
There are clinical notes from a practice at Rosemeadow relating to Mrs Guntan. In an entry dated 2 December 2020, Dr Yin recorded that Mrs Guntan had been involved in a “MVA” on 25 November 2020, and that she:
“…was driving and changing lines [sic], report hitting another car’s rear, her car flip once…”
A report from Keira Nobel, clinical psychologist, dated 18 January 2021 records a history that Mrs Guntan “…went to change to the left lane when she was impacted by another car…”.
Ms McAvoy
Ms McAvoy was the driver of the other vehicle involved in the accident. She provided the following account to police[5]:
“…I was driving towards Mac Square direct- Blaxland Rd C’Town was stopped when vehicle 1 …red Lancer tried to overtake on inside lane. When veh 1 accelerated to go around & the Lancer hit my left rear bumper & the Lancer flipped right over onto the roof & then back onto all four wheels and accelerated to the right over three lanes in western direction and crashing into the poles out front of VW car dealer.”
[5] Entry in police notebook on 25 November 2020 at 3.56pm.
Verifact reported to the insurer on 9 March 2023 and 27 April 2023. The report dated 9 March 2023 includes an unsigned statement from Ms McAvoy. There are also photographs of the accident scene and an incident diagram. The unsigned statement from Ms McAvoy records, relevantly, that:
“The traffic was heavy, and we moved slowly until I reached the roundabout…I had stopped behind about 2 car [sic] in front of me at the roundabout.”
The statement goes on to record that:
“…There was another car driving behind me and I saw her in my rear vision mirror approach me and then attempt to change lanes to her left to avoid stopping behind me.
She suddenly accelerated and smashed into the back left passenger side of the car I was driving, shunting me forward.”
I accept that Ms McAvoy’s unsigned statement reflects what she told Mr Taylor, an investigator, when she was interviewed by him on 15 February 2023. As it is unsigned, and was taken over two years after the accident, I give the unsigned statement limited weight.
Mr Barnes
The Verifact report dated 27 April 2023 contains an unsigned statement of Mr Barnes, an employee of PW Group. The statement records that Mr Barnes saw Mrs Guntan’s vehicle at rest in the garden of premises occupied by his employer. The unsigned statement records that Mr Barnes obtained a copy of CCTV footage that depicts the accident, and that the footage was recorded by a CCTV camera on the premises. It is also recorded that the CCTV footage was provided to police.
I accept that Mr Barnes’ unsigned statement reflects what he told an investigator when he was interviewed by telephone on 20 March 2023. I am satisfied that on 4 April 2023 Mr Barnes sent an email to the investigator, Mr Taylor, in which he stated that he had decided that he would “not be making the statement”, that “the video clearly shows the collision”, and that he wanted “no further involvement”.
The CCTV footage
The footage depicting the accident produced to the Commission has been recorded from a screen by an iPhone camera.[6] I am satisfied on the evidence before me that the footage was originally recorded by a CCTV camera located on the premises occupied by PW Group.
[6] Email from Andrew Barnes to the Commission dated 16 January 2024.
I am mindful of the authorities that discuss the limitations of CCTV footage, and the caution that must be employed by decision makers with respect to evidence of this nature[7]. The probative value of contemporaneous evidence of this kind will, however, depend on the nature and quality of the video evidence and the issues which need to be resolved[8]. The weight to be attached to CCTV footage is very much dependant on the quality and clarity of the images they depict as well as the context in which they are taken[9].
[7] See for example Angel v Hawkesbury City Council [2008] NSWCA 130, Blacktown City Council v Hocking [2008] NSWCA 144, and more recently Bondi Beach Foods Pty Ltd v Chadwick [2023] NSWCA 265.
[8] Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72 Sackville AJA (Ward JA and Garling J agreeing) at [42].
[9] QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478 Tobias AJA (McColl and MacFarlan JJA agreeing) at [23].
I have viewed the footage multiple times, including frame by frame. The footage has limitations: it was taken from a camera located on the opposite side of the road to where the collision occurred; the footage commences only a few seconds before the collision; there is likely some distortion of space and distance; in at least one frame the vehicles involved in the accident are obscured by a blue flag. Despite these limitations, the footage is clear and of good quality. I am satisfied that both vehicles can be clearly identified in the footage, as can the relative positions of the vehicles when the collision occurred.
NSW Police records
A NSW Police COPS report dated 4 January 2021 records that on the day of the accident the weather was fine, that the road surface was dry, and the speed limit at the location of the accident was 60kmph. I am satisfied that the report is accurate with respect to these matters, and make findings accordingly.
The COPS report contains the following description of the accident:
“About 3.30pm on Wednesday 25 November 2020, both driver 1 and driver 2 were travelling in a southerly direction in the right hand lane. Veh 1 has attempted to take over a stationary vehicle 2 when the driver has clipped the rear end of vehicle 2 and rolled her vehicle into towards the gutter then took off in a right angle to the right and cleared a further 4 lanes of traffic and landed on the grass medium strip up against bollards to the car yard.”
The report records that, in the opinion of the author[10], Mrs Guntan was responsible for the accident.
[10] Leading Senior Constable Evry.
Correspondence from NSW Police to the Commission dated 6 February 2024 records that Mrs Guntan was issued with a traffic infringement notice for negligent driving following the accident. At the preliminary conference held on 27 March 2024, Mrs Guntan confirmed that she did not contest the infringement, and that she paid the fine.
The documents produced by Police include copies of the notebooks that contain the versions of the accident provided by Mrs Guntan and Ms McAvoy, that are recorded earlier in these reasons.
Police have also produced photographs of the two vehicles involved in the accident. Mrs Guntan’s vehicle is depicted where it came to rest in a garden bed on the other side of Blaxland Road. The photographs depict significant damage to the vehicle. The photographs of the vehicle driven by Ms McAvoy depict damage to the left rear of the vehicle, including above the left rear wheel arch.
MRS GUNTAN’S CASE
Mrs Guntan does not believe that the accident was caused by her fault. As recorded earlier, her evidence is that she was “driving mindfully and had been a careful driver”. Mrs Guntan’s case is that the vehicle driven by Ms McAvoy moved to the left side of the road at the same time she did, and that this is what caused the accident.
THE INSURER’S CASE
In written submissions dated 14 November 2023 the insurer argues that Mrs Guntan failed to pay due care and attention when merging left from the right-hand lane, and that she caused the collision. The insurer submits that Mrs Guntan “was solely at fault for the accident”.
FINDINGS
The accident
I find that immediately before the accident, both Mrs Guntan and Ms McAvoy were driving in a generally southerly direction on Blaxland Road, Campbelltown, towards a roundabout. The weather was fine, the road surface was dry, and the speed limit at the location was 60kmph.
I am satisfied that the CCTV footage depicts:
(a) Ms McAvoy’s vehicle travelling slowly behind three other vehicles in the right hand lane;
(b) Mrs Guntan’s vehicle approaching Ms McAvoy’s vehicle from behind;
(c) Ms McAvoy’s vehicle moving slowly when the front of Mrs Guntan’s vehicle is proximate to the rear of her vehicle;
(d) Ms McAvoy’s vehicle remaining within the right hand lane prior to and after the accident, and
(e) Mrs Guntan’s vehicle flipping to its left, rolling and moving across multiple traffic lanes in each direction before coming to a rest in the car yard occupied by PW Group.
While the evidence does not enable me to make findings about the speed of either vehicle involved in the accident, I am satisfied, based on what is depicted in the CCTV footage, that immediately before the collision occurred, Mrs Guntan’s vehicle was travelling faster than Ms McAvoy’s vehicle.
Both the COPS report and Ms McAvoy’s unsigned statement record that Ms McAvoy’s vehicle was stationary when the collision occurred. I am satisfied, based on the CCTV footage, that Ms McAvoy’s vehicle was moving at a slow speed in the right lane when the collision occurred.
In her statement, Mrs Guntan stated that she “believe[d] that the car in front of [her] moved to the left side of the road at the same time [she] did”. I am not persuaded that this is what occurred; it is not depicted in the CCTV footage. Further, the CCTV footage satisfies me that when the collision occurred Ms McAvoy’s vehicle was wholly in the right hand lane.
On the day of the accident, Mrs Guntan told police that she “got hit”, but she didn’t “know how or where”. In her claim form Mrs Guntan recorded that she was travelling in the right hand lane and was merging to the left lane when the accident occurred. Her signed statement contains a similar account. Other than that a collision occurred while she was merging from the right to the left lane, I am not persuaded that Mrs Guntan knows how the collision came about.
Ms McAvoy told police on the day of the accident that Mrs Guntan tried to overtake on the inside (left) lane, and that when Mrs Guntan accelerated to go around her, Mrs Guntan’s vehicle hit the left rear bumper of Ms McAvoy’s vehicle.
The damage to the vehicles, the CCTV footage, and the evidence of both Mrs Guntan and Ms McAvoy support a finding that the front right (driver’s) side of Mrs Guntan’s vehicle collided with the rear left side of the vehicle driven by Ms McAvoy.
While the impact between the two vehicles cannot be seen in the CCTV footage, the evidence, that includes the version of events Mrs Guntan provided in her application for personal injury benefits and in her signed statement, satisfies me on the balance of probabilities that the collision occurred as Mrs Guntan was attempting to change from the right hand lane to the left hand lane.
Was the accident caused wholly or mostly by the fault of Mrs Guntan?
A reasonable person in Mrs Guntan’s position ought to have been able to execute a lane change without colliding with Ms McAvoy’s slow moving vehicle that was travelling wholly within the right-hand lane. I am satisfied that the collision between the two vehicles occurred as a consequence of Mrs Guntan’s failure to exercise reasonable skill and care in the management of her vehicle.
I find that the accident was caused by Mrs Guntan’s fault. I am not persuaded that there was any failure to exercise reasonable skill and care on the part of Ms McAvoy that was causative of the accident.
Given the preceding findings, I find that, for the purposes of s 3.11 and s 3.28 of the MAI Act, the accident was caused wholly by the fault of Mrs Guntan.
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