Kent v AAI Limited t/as GIO
[2022] NSWPIC 509
•7 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Kent v AAI Limited t/as GIO [2022] NSWPIC 509 |
| Claimant: | Ricky Allan Kent |
| insurer: | AAI Limited t/as GIO |
| Member: | Hugh Macken |
| DATE OF DECISION: | 7 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Negligence; onus of proof; caravan; late service excluding material. |
| determinations made: | 1. The claimant has not established negligence on the part of the insured driver and accordingly damages do not need to be assessed. 2. Costs are allowed in the sum of $7,361.63 inclusive of GST. |
STATEMENT OF REASONS
INTRODUCTION
This is a matter in which liability has been denied by the insurer on the basis that there was no negligence on the part of its insured. There is no allegation of contributory negligence. Should the claimant succeed in establishing negligence then the only matter requiring assessment is that of non-economic noting that the claimant’s injuries exceed the 10% whole person impairment established by the Motor Accident Insurance Act and accordingly would, if negligence is established, be entitled to compensation for non-economic loss.
An assessment conference was conducted by Teams and preliminary matters dealing with the insurer’s application for a report of Mr Hall, which was served some 4 days before the assessment conference, was dealt with. In this preliminary matter the claimant opposed the report being relied upon as they were not in a position to meet the report. I agreed with the claimant’s submission and did not allow this material into evidence. In this regard, I note that the report was seemingly a report “rounding up” the material already produced and apparently noting some calculations and reconstructions in respect to the accident. In my view this matter can be clearly assessed without any further material. To allow it into evidence would have been to either prejudice the manner in which the claimant was seeking to present his case or obliging a significant delay and further expense to allow the claimant to obtain material in response to this expert report.
Accordingly, the matter proceeded through an assessment conference with evidence being given by the insured driver, Kit Barker, witnesses David Robertson and Phillip Murray and lengthy submissions on the voluminous material provided in this matter.
Noting that the costs and disbursements had agreed, in respect to a mathematical entitlement in the sum of $7,361.63 inclusive of GST the insurer sought and was provided some additional time to prepare submissions as to why, should negligence not be found on the part of their insured driver, costs and disbursements ought not be allowed at all. Noting the need for this additional material was only related to costs the assessment conference was concluded.
The question of damages is contingent on the finding of negligence. Accordingly, it is appropriate to deal with the material in respect to negligence and then, should negligence of the part of the insured driver be established, deal with the assessment of damages.
ASSESSMENT CONFERENCE
At the assessment conference the insured driver gave evidence of his recollection. He was cross-examined extensively. I found Mr Kit Barker a witness of truth who neither embellished nor displayed any indecision or uncertainty in the evidence he gave. He has been consistent in his evidence right from the statement he gave to the police at the scene of the accident and in the subsequent statements he has made. Tellingly he states and I accept, that he remained in his lane at all times. That is, he did not allow either his vehicle or the caravan to cross onto the wrong side of the road. He confirms that his tyre was not flat at the time of the accident and that, as is shown in the photographs taken at the scene of the accident, he had a spare tyre affixed to the back of his caravan. He states that he did not have a passenger in the car. This was confirmed at the scene of the accident to the police and subsequently. When it was put to him that his type was flat prior to the accident he emphatically denied it. When it was put to him that he told that he had no spare wheel he also emphatically denied this pointing out that in fact he changed his damaged tyre, with the spare wheel, after the accident so that he could continue on his journey. There is nothing in any of the statements, or in the questioning of Mr Barker, to suggest anything other than it was as he said. That is, that he was travelling on the left-hand side of the road, wholly within his lane, when the motorcycle collided with the side of his caravan causing severe damage to the right-hand tyre of the caravan requiring it to replaced following the collision.
The claimant driver was not called. It was accepted in the claimant’s statement that he has no recollection of the accident and accordingly there is little to be gained by calling him to outline the circumstances of the accident. No adverse inference can be drawn from this. It is simply that he has no recollection of where the motorcycle was positioned at the point of impact.
Further evidence was given by David Robertson. He had provided a statement in which he said to the insured driver “you’ve got a flat tyre there”. He then stated that the insured driver said to him “I am waiting for someone with a spare”. This was denied by the insured driver. This also does not make any sense noting that there was a photograph taken at the scene of the accident which clearly shows a spare type affixed to the back of the insured driver’s caravan. He would not be waiting for someone with a spare when he had a spare on his caravan. When this was pointed out to him, he suggested that he was told by the insured driver that he had no spare wheel. This similarly does not follow any logical consequence noting that this was denied by the insured driver and is contrary to the fact that there was clearly a spare wheel affixed to the back of the caravan. It also does not follow noting that the insured driver was in fact obliged to change the damage wheel, with the spare wheel affixed to the back of his caravan following the accident. On balance, I do not accept the recollection of Mr David Robertson nor his version of the events of the accident.
A further witness to the accident was Mr David Robertson’s brother, Glen Robertson. In his statement to the police, which was signed, he stated that Rick failed to lean into the corner and crossed onto the north bound lane. This was the evidence given to the police at the scene of the accident and, quite logically, formed the basis of the police accident report’s version that the claimant was the one who crossed onto the wrong side of the road. A subsequent statement of Mr Glen Robertson that he does not know what side of the road the parties were on is not the best evidence of Mr Glen Robertson as it was not the contemporaneous evidence given at the scene of the accident. Mr Glen Robertson was not called at the assessment conference.
10.At the assessment conference Mr Phillip Murray was called. He was in a motor vehicle behind the scene of the accident. As he states he did not see the accident but arrived after it had occurred. He stated that the side wheel of the caravan was flat and the tyre was threaded and looked like it had been driven like that for some miles. This does not accord with the reality of the circumstance which was that the rim of the tyre had been struck with such force that it had folded in on itself and punched a large hole in the side of the tyre. Beyond this he states that he was told by the driver of the vehicle towing the caravan that he was “looking for somewhere to change my tyre I was only going steady.” He observed to him “yes I see your tyre is stuffed” and was then allegedly informed “yes it happened way back.” This was denied by the insured driver. This is also contrary to the photographs of the scene which showed a tyre clearly catastrophically damaged by the rim of the tyre being bent in and shredding the side of the tyre.
11.It makes no sense that he would say that he was looking for somewhere to change the tyre when, as I have indicated above, I do not agree that the tyre was flat prior to the accident. In my view the photographs clearly make out that the damage to the tyre was done when it was struck by the claimant’s motorcycle.
12.He also stated, “I couldn’t see a spare tyre on the caravan.” This is also clearly an error as the photographs clearly show a tyre affixed to the back of the caravan. In fact, Mr Murray agreed at the assessment conference that the tyre was on the back of the caravan.
13.On balance, and noting Mr Murray did not see the accident, I am not satisfied as to the veracity of Mr Murray’s statement noting that it is contradicted by photographic evidence.
14.There are number of factors that come in to play in dealing with liability in this matter. The onus is on the claimant to establish negligence. If I am unsure as to how things happened or who was on which side of the road, then quite clearly the claimant has not discharged this onus.
15.Further, there is limited information available to really make a thorough assessment. That is, eyewitnesses to the accident. The witnesses called by the claimant, so far as their evidence was relevant, contains errors of fact. That is, in relation to matters including whether the tyre was flat prior to the accident, whether there was a spare tyre affixed to the caravan and whether there was a passenger in the vehicle. This evidence is somewhat confused and contradictory to the photographs which were taken at the scene of the accident.
16.Finally, there is the statement which was given at the scene of the accident by Glen Robertson. The signed statement in the police notebook says, “I saw Rick” (the claimant) fail to lean into the corner and he went straight, crossing into lane 1 of 1 northbound and colliding into a caravan that was heading north at the time.”
17.Whilst this may have been clarified in a later statement it is this statement, given at the scene of the accident and recorded by a police officer and signed, that I consider it to be more compelling than the claimant’s later statement.
CONCLUSION AND FINDINGS
18.Noting all of these matters I am not satisfied that the claimant has discharged the onus in establishing negligence on the part of the insured driver.
COSTS
19.I note the claimant seeks costs in respect to this matter generally. I concur that Schedule 1 of the Regulations allows a costs order to be made in favour of the claimant. I have read the submissions of the claimant and agree with those submissions in so far as I note the claimant had no recollection of the events and there was some limited support for an allegation of negligence by witnesses to the accident. Further, the claimant suffered serious injuries resulting in serious and ongoing permanent damage and he was justified in bringing an action to seek some compensation in these circumstances.
20.Finally, the only way in which the claimant could realistically be afforded to cross examine the insured driver, in respect to all the circumstances of the accident, was at the assessment conference.
21.Accordingly, I concur that the costs and disbursements ought to be allowed and I note the parties’ agreement as to the mathematical entitlement of this being the sum of $7,361.63 inclusive of GST.
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