Insurance Australia Limited t/as NRMA Insurance v Wang
[2022] NSWPIC 211
•11 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Wang [2022] NSWPIC 211 |
| CLAIMANT: | Jin Rong Wang |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | David R Ford |
| DATE OF DECISION: | 11 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; the claimant was attempting to make a right hand turn at an intersection when his vehicle was struck by the insured’s motor vehicle which was travelling in the opposite direction; the collision occurred between both vehicles at the intersection; the insured’s driver travelling at an excessive speed in the circumstances and not keeping a proper lookout; the claimant was attempting to make the right hand turn with all due care and caution and was travelling at a very slow speed; 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 together with unregulated fee incurred in obtaining a report from Traffic engineer. |
| DETERMINATIONS MADE: | 1. For the purposes of section 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 purpose of section 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 11 May 2022. 4. Legal costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Act 2017 is to be assessed at the maximum regulated fee together with the unregulated fee incurred with the provision of the report from Joy Consulting Group. |
REASONS FOR DECISION – MISCELLANEOUS CLAIMS ASSESSMENT
Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 2017
BACKGROUND
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(d)(e) of the Motor Accident Injuries Act 2017, about whether for the purposes of section 3.28 (statutory benefits after 26 weeks to injured persons and persons most at fault, or to injured persons with minor injuries).
This is a dispute between the claimant and the insurer with respect to the payment of statutory benefits, pursuant to sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the MAI Act).
The insurer undertook an internal review, and a statement of reasons is attached to the application form and is dated 27 April 2021.
The claimant seeks to challenge the determination.
On 27 May 2020 a collision occurred between the claimant and the insured driver at the intersection of Talbot Street and Princess Highway at St Peters. The said intersection is not controlled by traffic lights. The claimant was travelling in a northerly direction on the Princess Highway and brought his vehicle to a halt in the right filter lane, being lane 4 of 4 lanes. It was the intention of the claimant to make a right hand turn into Talbot Street. At the same time, there was a Mack prime mover towing a semi-trailer carrying a shipping container in the south-bound lane 2 of the Princess Highway with its left-hand turn indicator activated. There was also another heavy vehicle stationary in Talbot Street facing west and this vehicle intended to make a right-hand turn exit from Talbot Street onto the Princess Highway.
The driver of the Mack prime mover was waiting for the heavy vehicle in Talbot Steet to exit Talbot Street in order to make sufficient room for his prime mover and semi- trailer to enter into Talbot Street which is a narrow street.
At the same time, the insured driver was driving his motor vehicle in lane in a southerly direction along the Princess Highway with the intention of passing the Mack prime mover.
The claimant has stated the driver of the Mack prime mover signalled him to execute his right hand turn into Talbot Street and accordingly he did so and had executed three quarters of the turn when suddenly and without warning, his vehicle collided with the vehicle being driven by the insured’s driver in a southerly direction in lane 1 of the Princess Highway. As a result of the collision, both vehicles were extensively damaged.
The insurer undertook an internal review and in their statement of reasons dated 27 April 2021, the insurer considered the claimant wholly or mostly at fault, and after 26 weeks, the weekly payments under sections 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 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 the Reply and also the report of Allen Joy of Joy Consulting Group dated February 2022.
INSURER’S SUBMISSIONS
The insurer submits the motor accident was caused wholly or mostly by the fault of the claimant and on page 9 of their submissions the insurer provides their reasoning as follows:
“(1)Section 3.28 is a disentitling provision, in that a finding of the Claimant being mostly at fault has the effect of ceasing his entitlements of statutory benefits that he had been receiving. As such, the Insurer concedes it is the Insurer’s onus to establish that the Claimant is mostly at fault. The insurer concedes that it bears the onus of proving on the balance of probability, that the Claimant was mostly at fault, being more than 61% responsible as prescribed by s 3.119(2) of the Act. The act defines ‘ mostly at fault’ as being contributory negligence assessed at greater than 61%. Such a finding would ensure that section 3.11 of the Act is satisfied in so far as the motor accident was caused mostly by the fault of a person, as contributory negligence of the person in relation to the motor accident was greater than 61%. As noted in the discussion above, contributory negligence is usually assessed by considering the relative culpability of the two parties.
(2)There is no doubt that the Insured driver was negligent. That is conceded.
(3)Whilst there was negligence on the part of the Claimant, a commission member is not required to apportion percentages with precision, but merely to determine whether or not the claimant was mostly at fault as defined. The Insurer would request that the commission member attribute the percentage contribution of the Claimant to the accident.
(4)The insurer would point out that the Claimant relied on the Mr Morrison waving him through the intersection and this would explain why he would not have observed the Insured vehicle proceeding into the intersection. In these circumstances, there is no other alternative other than that the Claimant was not checking for traffic ahead, as had he done so he would have observed the Insured vehicle proceeding into the interstation.
(5)The Claimant did not keep an appropriate lookout prior to executing his right-hand turn. The Claimant was unaware of the presence of the insured’s vehicle notwithstanding that had he been attentive to the roadway ahead of him, he would have seen him.
(6)The Claimant failed to keep a proper or adequate lookout prior to conducting his turn. It was incumbent upon the Claimant to check the roadway ahead for vehicles approaching from the opposite direction. The Claimant did not do so relying on Mr Morrison indicating his wave that it was safe to conduct his turn, to his peril.
(7)When making such a right-hand turn, the driver of a motor vehicle attempting this manoeuvre, should be keeping a proper lookout, which includes looking for oncoming traffic.
(8)In deciding whether Mr Wang was guilty of contributory negligence, a commission member must have regards to the standard of care set out in Section 5R of the Civil Liability Act (NSW) 2002.
(9)Mr Wang had a heavy duty to drive with care and had he paid proper attention and checked the roadway ahead was clear of traffic, would have been aware of the Insured’s vehicle travelling in lane 1 and relying on the Mr Morrison waving him through the intersection did not relieve Mr Wang of his duty to exercise reasonable care when proceeding through the intersection.
(10)In the Insurer’s submissions, Mr Wang was not keeping a proper lookout and is guilty of contributory negligence as such, with his contributory negligence being greater than 61 % and being of the order of 65%. and that therefore was ‘mostly at fault’ for the purposes of section 3.28 of the Act.”
I refer to the statement of the insured driver dated 8 October 2020 and 10 December 2020.
I note the following paragraphs:
“(30)At the time of the collision, I was travelling from China Town NSW to my home address in Tempe NSW. Prior to the collision, there were vehicles behind my vehicle (approximately 10-15m distance from my vehicle) and no vehicles in front of me aside from a semi-trailer truck that was in the right-lane. The semi-trailer truck had its emergency lights activated at the time.
(31)I was travelling in lane 1 of 2 on the Princes Highway in a southbound direction at approximately 60kph. I noticed the semitrailer truck in lane 2 of 2 southbound and stationary with his hazard lights activated. As I approached the semi-trailer truck, I slowed my vehicle by applying my brakes slightly to approximately 55kph. When I was passing the semitrailer truck, I checked for hazards to my left-hand side, and I did not notice any hazards to my left. As such, I continued in a straight path and as I entered the intersection with Talbot Street from the Princes Highway, I then noticed the Mercedes conducting a right-hand turn from the Princes Highway northbound and into Talbot Street. I also noticed another semi- trailer truck in Talbot Street that was stationary and facing west.
(32)I first noticed the Mercedes as I entered the intersection with Talbot Street and Princes Highway and approximately 2 seconds prior to impact.
(33)I do not know the speed in which the Mercedes was travelling.”
Thereafter there was a collision between both vehicles. I also note paragraph 40 of the insured driver statement:
“(40)I note that prior to entering the intersection, I did not give way, slow and check for oncoming vehicles.”
CLAIMANT’S SUBMISSIONS
The solicitors for the claimant served a report from Allen Joy of Joy Consulting Group dated February 2022. In his report, Mr Joy on page 5 sets out in detail the documentation which he has reviewed prior to the preparation of his report including dash camera images and land-based CCTV of the incident. On page 11 of his report, I note paragraph 8.12 as follows:
“(8.12) A poor quality image below shows a front view of the prime mover, semi- trailer and container in southbound lane two of Princes Highway immediately before the collision. Of significance is that the front left turn signal of the prime mover can be seen to be illuminated. The actual dash cam video (8) from the Mercedes Benz confirms the turn signal was flashing at a normal rate.”
Furthermore, on page 11 of his report Mr Joy has produced the image of the front view of the prime mover just before the collision between both vehicles. The red arrow drawn on the image points to the illuminated orange left turn signal of the prime mover.
On page 14 of his report, I note the following extract from the statement of the driver of the prime mover dated 12 August 2020:
“I was travelling in lane 2 of 2 southbound on Princes Highway when I came to a complete stop at the intersection with Talbot Street as I intended to conduct a lefthand turn onto Talbot Street in an eastbound direction. I was occupying lane 2 of 2 with my indicator activated to notify other drivers of my intention to turn left."
I further note paragraph 9.5 of the report of Joy Consulting in which reference is made to the statement of the claimant:
“I was heading northbound on the Princes Highway in the right-filter lane, being lane 4 of 4 with my right indicator activated to conduct a right-hand tum onto Talbot Street. As mentioned above, there was a stationary heavy vehicle positioned in lane 2 of 2 southbound on the Princes Highway with the left indicator activated to conduct a left-hand tum onto Talbot Street. As it was a large heavy vehicle, it required more turning space and needed to turn from lane 2 of 2 instead of lane 1 of 2. I also note that there was another large heavy vehicle stationary in lane 1 of 1 westbound on Talbot Street with the right indicator activated to conduct a righthand turn onto the Princes Highway.
As Talbot Street is seemingly narrow, both heavy vehicles could not fit side by side simultaneously. As such, the heavy vehicle positioned on Talbot Street needed to exit Talbot Street in order for the other heavy vehicle positioned on the Princes highway to conduct a left-hand turn into Talbot Street.
I note that as I approached the intersection with Talbot Street, I slowed from 40kph and became stationary for approximately 4 seconds. In this time, the heavy vehicle approached the intersection from the opposite side and also became stationary. I note that the heavy vehicle driver located southbound on the Princes Highway signalled me via a wave to conduct the right-hand turn onto Talbot Street. There were no vehicles in lane 1 of 2 southbound as I was observing the conditions as the heavy vehicle was approaching the intersection and the heavy vehicle left a large gap at the intersection. As such, I proceeded to conduct the right-hand turn. Suddenly and to my surprise, while I was approaching to enter Talbot Street and positioned in front of lane 1 of 2 southbound, the other vehicle struck my vehicle causing my vehicle to turn a further 110° and to face southbound in the southbound lanes.
… At the time of the turn, I was travelling approximately 5 km/h.
… I believe the other vehicle was travelling no less than 80 km/h.
…The point of impact on the roadway was within the intersection of Princes Highway and Talbot Street and precisely in line with lane 1 of 2 southbound.”
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
(a)the MAI Act;
(b)Motor Accident Injuries Act Regulation 2017;
(c)Motor Accident Guidelines 2020; and
(d)Civil Liability Act 2002 (NSW).
REASONS
Was the motor accident caused wholly by the fault of the claimant?
In the submission lodged by the insurer it is conceded the insured driver was negligent and therefore, the insurer concedes the motor accident was not caused wholly by the fault of the claimant.
Was the accident mostly by the fault of the claimant?
The onus proving contributory negligence rests upon the insurer. In deciding whether the claimant was guilty of contributory negligence, I must have regard to the standard of care set out in section 5R of the Civil Liability Act 2002 (NSW). Furthermore, I note in the submissions lodged by the insurer they have requested I attribute the percentage contribution of the claimant to the accident. They have further submitted the claimant was not keeping a proper lookout and is guilty of contributory negligence as such his contributory negligence being greater than 61% in being of the order of 65%.
I find the insured’s driver was not keeping a proper lookout and was driving at an excessive speed in the circumstances. I did not find the Mack prime mover had activated its hazard lights, but rather I accept the driver of the Mack prime mover had engaged his left turn signal and this should have alerted the insured’s driver that the intention of the driver was to turn left into Talbot Street and in such circumstances, he should not have attempted to overtake the said Mack prime mover.
Furthermore, I accept the statement of the claimant that at the time of the collision he was travelling at approximately 5km/h, which in the circumstances is an appropriate speed having regard to the fact his vision may have been impaired with respect to oncoming vehicles travelling southbound in lane 1 of the Princess Highway.
The solicitor for the insurer submitted I should find the claimant was guilty of contributory negligence to the extent of 65%. I reject this submission. In the circumstances of this accident, I find the claimant was not guilty of contributory negligence.
Accordingly, I find the motor accident was not caused mostly by the fault of the claimant.
FINDINGS
I find the accident of 27 April 2021 was not caused wholly by the fault of the claimant.
I find the accident of 27 April 2021 was not caused mostly by the fault of the claimant.
COSTS AND DISBURSEMENTS
Costs are awarded in accordance with the Motor Accident Injuries Act Regulation 2017 Schedule 1, and I award the claimant his costs which I assessed at the maximum
regulated fee together with the unregulated fee with regard to the provision of the report of Joy Consulting Group.
CONCLUSION
My determination of the miscellaneous claim is a follows:
(a)for the purposes of sections 3.11 and 3.28 the motor accident was caused by the fault of another person, and
(b)for the purposes of sections 3.11 and 3.28 the motor accident was not caused mostly by the fault of the injured person.
EFFECTIVE DATE
This determination takes effect on 11 May 2022.
LEGAL COSTS
The amount of the claimant’s costs assessed in accordane with the Motor Accident Injuries Act Regulation 2017 is assesed at the maximum regulated fee together with the unregulated fee in obtaining the provision of the Joy Consulting Group report.
David Ford
Member (Motor Accidents Division) Personal Injury Commission
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