Harris v NRMA Insurance - [2021] NSWPIC 352

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Harris v NRMA Insurance [2021] NSWPIC 352
CLAIMANT:	Jonathan Harris
INSURER:	NRMA Insurance
MEMBER:	Anthony Scarcella
DATE OF DECISION:	13 September 2021
CATCHWORDS:	MOTOR ACCIDENTS - Application for assessment of common law damages; motorcycle accident on a motorway; Claimant motorcyclist applied his brakes heavily because an unidentified vehicle travelling in front of him suddenly braked; Claimant thrown off his motorcycle; no collision between motorcycle and unidentified vehicle; Nominal Defendant wholly denied liability; section 5B of the Civil Liability Act 2002; Mobbs v Kain, Sibley v Kais, Trompp v Liddle, Derrick v Cheung, Manley v Alexander and Mugford v Ames considered and applied; reliability of Claimant’s evidence; Onassis and Calogeropoulos v Vergottis and Watson v Foxman considered; entitlement to regulated costs where the Claimant is not entitled to damages; section 3.7 of the Motor Accidents Injuries Act 2017; Held – the driver of the unidentified motor vehicle owed a duty of care to the Claimant; the driver of the unidentified motor vehicle did not breach the duty of care owed to the Claimant; the Claimant is entitled to regulated costs despite failing to obtain an award of damages.
DETERMINATIONS MADE:	1. On the issue of liability for the claim, the NRMA Insurance, as the nominated compulsory third-party insurer of the driver of the unidentified motor vehicle allegedly at fault, owed a duty of care to the Claimant. There was no breach of that duty of care and the Claimant is not entitled to damages for the injury, loss and damage sustained. 2. Under sections 7.36(3) and 7.36(4) of the *Motor Accidents Injuries Act* *2017, I specify the amount of damages for this claim as $0. 3. The amount of the Claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Motor Accidents Injuries Act* *2017*, is $7,631.12 inclusive of GST.

Reasons for Decision

Issued under section 7.36(1) of the Motor Accidents Injuries Act 2017

BACKGROUND

This dispute relates to an application for an assessment of a claim for damages (the Application) under section 7.36 of the Motor Accidents Injuries Act 2017 (the MAI Act) in respect of a motor accident that occurred on 26 May 2018. The Application was lodged with the Dispute Resolution Service (DRS).
The Personal Injury Commission (the Commission) commenced operation on 1 March 2021 and the DRS was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020. I am a General Member of the Motor Accidents Division of the Commission and clause 14B(1) of the Personal Injury Commission Regulation 2020 designates this Application as pending proceedings and clause 14B(3) empowers me to assess the claim.
Mr Jonathan Michael Harris (the Claimant) is a 22 year old man, who was involved in a motor accident on 26 May 2018 on the M2 Motorway at North Ryde (the motor accident) in which he suffered injuries. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 352
Decision Date: 13 September 2021

CaseChat Overview and Summary

The case of Harris v NRMA Insurance involved the Claimant, a motorcyclist, who filed an application for assessment of common law damages following a motorcycle accident on the M2 motorway. The Claimant alleged that an unidentified vehicle travelling in front of him suddenly braked, prompting the Claimant to apply his brakes heavily, resulting in him being thrown off his motorcycle. The Nominal Defendant, NRMA Insurance, denied any liability for the accident. The primary legal issue before the court was whether the driver of the unidentified vehicle owed a duty of care to the Claimant and whether that duty was breached, causing the Claimant’s injuries.

The court considered various precedent cases such as Mobbs v Kain, Sibley v Kais, Trompp v Liddle, Derrick v Cheung, Manley v Alexander, and Mugford v Ames to determine the existence and breach of a duty of care. The court also examined the reliability of the Claimant's evidence, taking into account cases such as Onassis and Calogeropoulos v Vergottis and Watson v Foxman. Additionally, the court had to determine whether the Claimant was entitled to regulated costs under section 3.7 of the Motor Accidents Injuries Act 2017, despite not being awarded damages.

The court found that the driver of the unidentified vehicle did owe a duty of care to the Claimant. However, it concluded that there was no breach of that duty. The court reasoned that the Claimant had maintained an unsafe distance behind the vehicle in front of him, which contributed to the accident. The court also found that the Claimant's version of events was not entirely reliable, as his statements varied over time. Consequently, the Claimant was not entitled to damages. Nevertheless, the court determined that the Claimant was entitled to regulated costs under the Motor Accidents Injuries Act 2017, as he had not obtained an award of damages but had still incurred costs in pursuing the application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The following documents were in evidence before the Commission and considered in making this determination:(a) the Claimant’s Application dated 7 October 2020 and the supporting documents attached and thereafter lodged with the Commission, and(b) the Insurer’s Reply dated 4 November 2020 and the supporting documents attached and thereafter lodged with the Commission.Oral evidence Oral evidence was adduced from the Claimant at the audio visual assessment conference.SUBMISSIONS The Claimant provided written submissions on the substantive issues dated 22 February 2021 and provided amended written submissions dated 4 March 2021, supplemented by brief oral submissions at the assessment conference. The Insurer provided written submissions on the substantive issues dated 4 November 2020 and 19 March 2021, supplemented by brief oral submissions at the assessment conference. I will refer to the parties’ submissions under each relevant issue for determination set out below.LIABILITY FOR THE MOTOR ACCIDENTThe Claimant’s evidence In evidence, there is the Claimant’s Application for Personal Injury Benefits (the Claim Form) dated 31 May 2018 in respect of the motor accident.[1] I will now refer to the relevant parts of the Claim Form.[1] The Application at pages 4-9 In the Claim Form, the Claimant described the site of the accident as being approximately 300 metres west of the entrance to the Lane Cove Tunnel. In the Claim Form, the Claimant described the motor accident in the following terms:“I was travelling along the M2 motorway and was approximately 300 metres west of the Lane Cove Tunnel when the car in front of me unexpectedly broke [sic] suddenly for no apparent reason. I applyed [sic] my breaks [sic] to avoid a collision and was thrown forward off my motorbike landing on the roadway. The car in front did not stop.”[2][2] The Application at page 6 at [3] In the Claim Form, the Claimant described his injuries as two fractures of the lumbar spine (L2 and L3) and a fracture of the left little finger. In evidence, there is a statement by the Claimant provided to an investigator, Mr John Gottstein, appointed by Allianz Insurance Australia Limited dated 26 June 2018. I will now refer to the relevant parts of that statement. The Claimant described himself as an experienced motorcycle rider on roads other than freeways. Prior to the motor accident he had only driven on freeways less than 12 times. The Claimant stated that, on 26 May 2018, he left his home in Alexandria at about 1:00 pm and rode his motorcycle to Kellyville Oval to play rugby league for UTS. He played between 3:00 pm and about 4:15 pm. He left Kellyville Oval at about 4:30 pm with the intention of riding back home. The Claimant stated that he rode his motorcycle East along the M2 Motorway in the left lane. He had been riding behind a black motor vehicle for some distance on the M2 Motorway. The black motor vehicle was accelerating away from him and then slowing down again for no apparent reason. Initially, the slowdown was not a dramatic change in speed (about 10 km/h). The Claimant kept his distance from the black motor vehicle.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Insurer’s oral submissions at the assessment conference in respect of the liability issue may be summarised as follows:(a) There is no evidence of the Nominal Defendant’s vehicle coming to a sudden halt. There is evidence of a sudden braking manoeuvre. A sudden halt suggests that the vehicle came to a rest and there is simply no evidence that occurred.(b) The Claimant’s submission that the Nominal Defendant had a duty of care to keep a proper lookout is a retrospective analysis of what was occurring. The Claimant has not articulated the precise breach he relies on. Is it the braking? Is it the speed? Is it the braking and speed because of the closeness? If it is the closeness, that gives rise to a very fundamental problem of causation as addressed in the Insurer’s written submissions. Despite the Claimant being aware that the speed of the Nominal Defendant’s vehicle was fluctuating, the Claimant maintained an unsafe distance behind it at all times.(c) In his more contemporaneous evidence, the Claimant stated that he was at a distance of between 30 metres and 40 metres behind the Nominal Defendant’s vehicle, which on any view was far too close and he pulled on the front brake only. That was the cause of this accident.(d) The Claimant must show that any breach must be a necessary condition of the harm. Braking and/or travelling at a speed higher than the speed limit were not the cause of this motor accident.(e) Observing the situation prospectively, why should a driver have a reasonable concern that someone driving behind him would be travelling too close and would fail to apply their brakes properly?(f) Regulation 126 of the Road Rules reminds us all that we have to drive at a safe distance behind the vehicle in front of us so that we can stop in time. That informs the duty of care. It does not determine breach. It does not determine the scope but it certainly informs a decisionmaker of the process that must be taken on a prospective basis.(g) On the evidence, it is likely that the Nominal Defendant applied his brakes because the traffic in front of him was increasing in density as it approached the Lane Cove Tunnel. That is likely because the Claimant carefully made reference to the traffic around him and one can only really make a genuine assessment of the speed of a vehicle in front of him by reference to other vehicles in front of him. It is likely that the Nominal Defendant’s vehicle slowed for some reason. Why it slowed does not matter.(h) The Claimant has engaged in, to a large extent, a reconstruction over time. He gave evidence of what he thought would or should have happened as opposed to what in fact did happen. The Claimant’s reconstruction in respect of the speed camera sign demonstrated that the Claimant was endeavouring to explain in his own mind how he got himself into this terrible position.(i) What prospectively more ought a driver have done than to slow down when they recognised they were going over the speed limit or there was traffic slowing down in front of them? It is the duty of the driver to drive at a safe speed.(j) Mr Griffiths provided sufficient expert evidence to find that the manner of riding was distinctly unsafe and was far too close given the speed. He provided sufficient evidence to find that the Claimant’s braking manoeuvre was distinctly unsafe and the wrong choice. Had that not occurred, the accident would not have occurred.(k) Whilst the Claimant is the only witness, the decision maker has to be actually persuaded that the version of events that the Claimant proffered occurred. There is no one solid version of events. The Claimant’s more recent statement bears little relationship to the statements provided to Mr Gottstein or Mr Scott. One cannot be satisfied that the Claimant’s version of events is one that must be accepted. It is simply one of a number of versions that he has proffered over time.Consideration and findings