Hipkins v AAI Limited t/as GIO
[2023] NSWPIC 494
•18 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Hipkins v AAI Limited t/as GIO [2023] NSWPIC 494 |
| CLAIMANT: | Clinton Hipkins |
| INSURER: | GIO |
| MEMBER: | David Ford |
| DATE OF DECISION: | 18 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28; the claimant was driving his motor vehicle at a speed of 110km along the M1 motorway towards Sydney and was driving in fast lane (lane 3) when the insured driver, without warning, allowed the trailer of his lorry to partially move into lane 3 and this manoeuvre caused the claimant to take immediate evasive action, which caused him to collide with the left rear of the trailer; Held – motor accident not caused wholly or mostly by the fault of the claimant; claimant entitled to payment of legal costs assessed at the maximum regulated fee. |
| DETERMINATIONS MADE: | CERTIFICATE The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the motor accident was not caused wholly or mostly by the fault of the injured person. 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the motor accident was not caused wholly or mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 15 September 2023. 4. Legal Costs: the amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,800.48 plus GST. 5. A brief statement of my reasons for this determination are attached to this certificate. |
STATEMENT OF REASONS
INTRODUCTION
This is a dispute between Clinton Hipkins (the claimant) and the insurer with respect to the payment of statutory benefits, pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the Act).
The insurer undertook an internal review, and a statement of reasons is attached to the reply form and is dated 6 December 2022.
The claimant seeks to challenge the determination.
On 25 June 2022 at approximately 4:30am, the claimant was driving his motor vehicle at a speed of 110kmph in a southerly direction along the M1 motorway towards Sydney, as he drove across the Brooklyn Bridge he was driving in the fast Lane/overtaking lane (lane 3) and ahead of him was a Lindsay Brothers truck in the slow (lane 1) and in the middle line (lane 2) was the insured B double motor lorry (lorry).
The insured driver had significantly reduced his speed to about 50kmph, as he was not able to overtake the Lindsay Brothers motor lorry in lane 1 and had decided to drop his lorry back right behind the Lindsay Brothers truck.
It is alleged by the claimant, the insured driver, in undertaking this manoeuvre, allowed the trailer of the lorry to whip “Into lane 3”. This manoeuvre caused the claimant to take immediate evasive action, moving his vehicle into lane 2. However, this manoeuvre caused him to collide with the left rear of the trailer. He sustained serious injuries in the accident and was conveyed by rescue helicopter to the Royal North Shore Hospital.
The insurer undertook an internal review and in their statement of reasons dated
6 December 2022, the insurer considered the claimant wholly or mostly at fault and after
26 weeks, the weekly payments under ss 3.11 and 3.28 were ceased.The claimant submits he was neither wholly or mostly at fault in the motor accident, and he is entitled to a continuation of statutory benefits. He has now filed this application seeking a determination of the dispute with the insurer.
Documents considered
I have considered the documents provided in the Application and in the Reply and also considered other documents which was subsequently lodged on the portal by the insurer.
Claimant’s submissions
In the Application for Personal Injury Benefits Claim Form, dated 25 June 2022, (at the assessment conference he acknowledged this date was incorrect and the claim form was completed at a much later date) the claimant provided the following description of the accident:
“heading southbound 4:30 am 25/6/ 22, travelling to carry out morning deliveries for work, I was in the fast overtaking lane at a speed of 110 kph when a Bdouble entered the highway fast paced and driving across lanes very erratic The driver of the B double crossed the first lane crossed the second lane faster than my speed. As he did the tail/rear trailer whipped into my lane (the fast lane) I carried out a defensive move cutting left into the middle lane allowing him the clear fast lane. Upon me moving back into middle lane, the truck driver applied brakes very dangerously causing me to collide into his rear trailer, a collision I could not avoid.”
The clinical records of the North Shore Hospital record the claimant saying “saw a truck. did not swerve enough to avoid truck and hit back at 110 kph”.
He was also interviewed by an investigator from M and A investigations, and I refer to their report dated 1 September 2022. Initially, he stated he saw the insured truck weaving in and out of the three lanes, as he went to overtake the truck, a rear tail gate flew open causing him to take evasive action. He then provided a statement dated 23 August 2022 and I note paragraph 36 of the statement as follows:
“Crossing the bridge, I was in the right-hand fast lane and then as we started to go up the hill, I saw a truck in the left-hand slow lane and also a truck in the middle lane. I saw this truck go for the left-hand lane overtaking a slower truck and he went into the middle lane and then the truck was half into my lane which is the far-right hand lane, and I was in the lane. I put my foot on the brake a bit to slow down and that would have allowed the truck to get into the fast lane, but I wish to say that there were no other trucks in the two inside lanes that I could see. I slowed down a bit and then my thought was to get in behind the truck and then all of a sudden, the truck and trailer slowed down a considerable amount. I did not see any brake at all, there was also no lights of any kind on the trailer and then I know I hot [sic] the back of the trailer on the right hand side and that damaged my van on the right side across the front I then spun around and then I saw oncoming traffic of cars then I stopped and I know straight away that I was injured and trapped as I tried to get out but I could not…”
When subsequently interviewed by the police on 22 October 2022, he did not tell the police the B double lorry did not have lights on the trailer, and in the interview with the police he did state the following, “I am a bit out of whack at the moment”. At the general assessment conference, he denied copying information from social media when completing his claim form in relation to another separate motor vehicle accident which is referred to in paragraph 48 of the statement of the insured driver dated 20 August 2022.
Insurer’s submissions
The insurer submits the accident was wholly or mostly the fault of the claimant. The solicitor for the insurer endeavoured to obtain a copy of the dash cam from the employer of the insured driver, however, the solicitor was informed by email dated 7 April 2023 the employer was unable to retrieve any footage of the accident. The driver of the insured lorry was not available to be questioned at the general assessment conference. I also not in paragraph 48 of the statement of the insured driver, he states there was no dash cam fitted to his lorry.
The insurer has submitted the claimant was negligent as follows:
a. failing to keep a proper lookout for vehicles or potential hazards on the roadway.
b. failing to see, observe and take appropriate action so as to avoid the collision with the insured, and
c. travelling too close to the insured vehicle in the circumstances, failing to travel at a safe distance behind the insured vehicle.
I refer to paragraph 33 of the statement of the insured driver, he states as follows:
“At approximately 3:45 am I was travelling in a southerly direction along the M1 south of the Brooklyn Bridge at a speed of about 90 across the bridge as I came out of the 90kph zone and then across the bridge and then it starts to rise. At that time the traffic flow was light in the same direction I was travelling. I was travelling in the middle lane as there was also a Lindsay Brothers truck on the slow left lane, I can't think of the driver’s name. I made my way up the incline, the truck was fully loaded and started to slow down, at no time did I get out of the middle lane as my plan was to stay in the middle lane until I overtook the left hand lane truck and then I would have got into the left hand lane .,in the far right lane is not to be used by trucks and at no time was in that right hand lane or even anywhere near crossing into the lane . The truck on my left then started to keep his speed up and I realised that I could not overtake so my next step was to keep my speed at about 50 kph and he was about 55 kph .. I was then going to get in behind him. I had a Bluetooth phone connection and talking Anthony Connell from Lindsay Brothers and he was about 1/2 hours behind me. We were talking like mates too and then I felt a large impact behind me.”
REASONS
Was the claimant wholly at fault in causing the accident?
I accept the claimant has on several occasions provided statements concerning the circumstances of this accident which are inconsistent and, in some respects, incorrect. However, at the assessment conference, I found him to be truthful when being questioned by both counsel and was prepared to freely admit some of the inconsistencies recorded in his previous statements. He specifically denied he was endeavouring to reconstruct the events leading up to the accident.
I accept his statement that the insured lorry, at one point, was halfway into the third lane, in front of his oncoming vehicle, and this caused him to take evasive action while travelling at a speed of 110kmph and caused him to lose control and collide with the left side of the trailer attached to the insured lorry.
I therefore find the insured driver negligent in the driving of his lorry as I find immediately prior to the collision, he had driven his lorry and trailer partly into lane 3 in front of the claimant’s oncoming vehicle, which was approaching at high speed.
I therefore find the claimant was not wholly at fault in causing the accident.
Was the accident caused mostly by the fault of the claimant?
The onus of proving contributory negligence rests upon the insurer. The driver of a motor vehicle is to take reasonable care for the safety of other road users.
In Manley vs Alexander (2005) HCA 79 2005 80 ALJ R413 at [11] the majority of the High Court emphasised the duty of a driver to give “reasonable attention to all that is happening on and near the roadway that might present a source of danger”.
A claimant who asserts a motorist is negligent in fighting to keep a proper lookout must establish the motorist had the opportunity to see the claimant and failed to do so. This is consistent with the principle in Manley v Alexander that is the duty of a motorist to be observant of all possible sources of danger on the road.
Section 5R (1) the Civil Liability Act NSW 2002 provides principles that are applicable in determining whether a person has been negligent can also apply in determining whether the person who has suffered harm has been contributory negligent in failing to take precaution against the risk of that harm. The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at the time see s 5R (2) (a) and (b).
Section 5B of the Civil Liability Act 2002 provides in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm, and
(e) the determination of whether a claimant has been contributory negligent is to be decided objectively on the basis of the facts and circumstances of the case, see Serrao ( by his tutor) Serrao v Cornelius (2) 2016 NSW CA 231 (at [61]) and Tand X Company Ltd v Chivas 2014 NSW CA 235 at [51].
I find the insured driver immediately prior to the collision had driven his lorry partially into lane 3 in front of the claimant’s oncoming vehicle, which was approaching at a speed of 110kmph and which caused the claimant to take immediate evasive action which resulted in the collision.
I further find the claimant was not keeping a proper lookout in the circumstances and should have seen the insured lorry had significantly reduced it's speed to 50kmph and this should have alerted him to at least reduce the speed of his own vehicle as he approached both the truck in lane 1 and the lorry in lane 2. Therefore, I find the claimant is guilty of contributory negligence as such, but I do not find his contributory negligence was greater than 61%.
I therefore find the claimant was not mostly at fault in causing the accident.
FINDINGS
I therefore find the accident of 25 June 2022 was not caused wholly by the fault of the claimant.
I also find the accident of 25 June 2022 was not caused mostly by the fault of the claimant.
COSTS AND DISBURSEMENTS
The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,800.48 plus GST.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
(a) For the purposes of s 3.11 of the Act, the motor accident was not caused wholly by the fault of the claimant.
(b) For the purposes of s 3.28 of the Act, the motor accident was not caused mostly by the fault of the claimant.
(c) Effective Date: This determination takes effect on 15 September 2023
(d) Legal Costs: $1,800.48 plus GST.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
(a) the Act.
(b) Motor Accident Injuries Act Regulation 2017.
(c) Motor Accident Guidelines 2020, and
(d) Civil Liability Act 2002.
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