Khan v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 88
•6 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Khan v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 88 |
| Claimant: | Amina Khan |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Elizabeth Medland |
| DATE OF DECISION: | 6 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether for the purposes of sections 3.11 and 3.28 the injured person was mostly at fault for the accident; claimant driver turning right into Casula Mall NSW; oncoming insured driver travelling in opposite direction; collision occurred as claimant completing her turn; claimant alleged the insured was travelling at excessive speed; Held – claimant mostly at fault; no evidence to establish allegation of excessive speed; claimant failed to give way when insured driver had right of way. |
| determinations made: | Certificate Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.11 the motor accident was not caused by the fault of another person. 2. For the purposes of s 3.28 the motor accident was caused mostly by the fault of the injured person. 3. Effective date: This determination takes effect on 9 November 2021. 4. Legal costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,800 plus GST. |
Reasons for decision
BACKGROUND
This determination relates to a dispute between the parties as to whether the injured person is mostly at fault for the motor accident pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the MAI Act).
Amina Bibi Khan (the claimant) is a 62 year old woman who suffered injury as a result of a motor accident occurring on 13 April 2021. A collision occurred between the claimant’s vehicle and another vehicle, as the claimant attempted to enter the Casula Mall Carpark.
The claimant subsequently lodged an application for personal injury benefits (claim form) with the insurer of the other vehicle (insured vehicle) on 28 April 2021. Liability was initially accepted for the payment of statutory benefits.
By way of notice dated 9 November 2021, the insurer denied ongoing payments of statutory benefits after 26 weeks, on the basis that the insurer considered the claimant to be wholly at fault for the motor accident.
An internal review was requested and the insurer affirmed the original decision on
15 December 2021.The claimant subsequently lodged an application with the Personal Injury Commission (Commission) for determination of the dispute.
A number of teleconferences have occurred. Initially enquiries were being made as to the existence of any CCTV footage. Those efforts did not result in any footage being obtained.
The matter was scheduled for an assessment conference on 1 November 2022, however, was adjourned on the basis that the attendance of the insured driver had been requested by the claimant and contact with her had not been established.
A further assessment conference was scheduled for 1 February 2023 which went ahead via Microsoft Teams.
Both the claimant and the insured driver were questioned at the conference and the parties each gave oral submissions.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application, the reply and any further information provided by the parties.
LEGISLATIVE FRAMEWORK
Section 3.11 of the MAI Act provides as follows:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if-
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
Section 3.28 of the MAI Act provides as follows:
“(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
Pursuant to Schedule 2, cl (3)(d) and (e) of the MAI Act, a dispute relating to ss 3.11 and 3.28 are declared as miscellaneous claims assessment matters for the purpose of Part 7 of the MAI Act.
Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment.
SUMMARY OF EVIDENCE
There is no available evidence from NSW Police.
The claimant gave the following version of events in the claim form:
“I drove down Kurrajong Road in a easterly direction towards Casula Mall. I passed the first driveway entry and came to a stop adjacent to the second driveway entry to the car park. There were no cars coming down the road from the opposite direction. There was a bus stopped at the bus stop a few metres before the driveway. I commenced to turn right. My car was almost fully in the driveway when all of a sudden, a car which had been travelling in a westerly direction down Kurragong Road hit the left corner of my car. The force caused the rear of my car to swing to the right.”
Claimant’s statement
The claimant has provided a statement dated 7 September 2022. She states that she was travelling in an easterly direction on Kurrajong Road, having left her home to travel to Casula Mall. She states that it was getting dark and had her headlights on. From paragraph 6 of the statement she states as follows:
“As I approached an entrance driveway leading into the Casula Mall Carpark, I engaged my right indicator, slowed down, and then brought my vehicle to stop in accordance with traffic conditions.
I recall that I had stopped for about 10 to 15 seconds, during which time I checked that the traffic that was travelling in the opposite direction to me along Kurrajong Road.
I saw a bus, I think that it was a blue government bus displaying the 895 route, approach the bus stop that is positioned about 15 or so metres away from the driveway entrance that I was intending on driving into.
That bus came to a stop at that bus stop which cut off the traffic behind it, meaning that there is no designated lane for traffic that is traveling behind the bus to go around it.
At that point I had satisfied myself that there was no oncoming traffic and that it was safe to turn, so I commenced turning right from Kurrajong Road into the Carpark Casula Mall driveway entrance.
As I was completing my turn, a vehicle that was travelling in a westerly direction on Kurrajong Road collided with the left rear side of my vehicle.
My front wheels had entered the driveway and my rear wheels were also just about to enter the driveway when the impact occurred. My rear wheels were in line with the driveway entrance but had not yet crossed the driveway entrance.
The force of that impact caused my car to spine [sic] 180 degrees and caused my front airbag to be deployed.”
Insured driver’s statement
The insured driver, Natasha Toseski, provided a statement to investigators dated
29 May 2021.She states that she was driving her Hyundai I30N hatchback and it was around 6pm and was dark and not raining. Her headlights were on, noting that they come on automatically. She was the only person in the car.
She was driving along Kurrajong Road and notes that she knows the road very well as she drives it every day.
She states from paragraph 14 of her statement as follows:
“I was driving along Kurrajong Road, Casula towards the gym. Kurrajong Road is a 60 area. I drive Kurrajong Road every day and I know it very well. I was going past Casula Mall which was on my left. I had slowed and gone over a raised pedestrian crossing outside Casula Mall. I slowed to about twenty five kilometres an hour to go over the crossing. I started to accelerate.
I saw a bus ahead which was stopped on my left at the bus stop. I was still accelerating towards sixty kilometres an hour. I haven’t gone far from the pedestrian crossing and I think I had only got up to between forty and fifty kilometres per hour.
I had just gone past the bus that was stopped when a car that was coming towards me suddenly made a right turn across the front of me. It was turning into the entrance of the Casula Mall car park.
I braked and I turned to the right trying to avoid colliding with this car which resulted in the front left of my car hitting the back left of the other car near to the rear left tyre and at the rear passenger door.”
The insured’s air bags deployed. She exited her car and went to the claimant who would not speak to her. A husband and wife spoke to the insured. The wife, Mandy, stated she saw the accident and gave the insured her phone number.
The NSW police attended. They spoke with the insured driver but did not take a statement.
Factual investigation report of Brooksight Investigations dated 25 June 2021
The report was commissioned by the insurer.
The investigators contacted a witness, who evidently is the husband of “Mandy”. A transcript of interview is included in the investigation report. The transcript is less than satisfactory. The investigator failed to ask pertinent questions as to the circumstances of the accident. At the assessment conference, the legal representatives for both parties agreed that I should pay no regard to the transcript of interview with the witness.
The investigation report includes some basic sketches of the scene, however, do not set out measurements and relevant landmarks. However, a number of photographs are provided of the scene which are of assistance.
Photograph 1 depicts the subject driveway of Casula Mall taken from the direction of travel of the insured driver. The photograph shows a “bus zone” sign post to the left and to the right a raised traffic island– although it is only partially in view.
Photograph 3 is taken further back from the driveway, still from the perspective of the insured driver. It depicts a bus shelter to the left, several metres prior to the driveway. The roadway consists of two lanes, with a lane for each direction of travel. Whilst no measurements are provided, the lane travelled in by the insured is of generous proportions. In this regard, the photograph demonstrates ample “spare” roadway when a car is travelling on it.
Photograph 5 is taken even further back and depicts the raised pedestrian crossing described by the insured driver, set out above. A bus is stopped at the bus stop.
Photograph 6, 7 and 8 are taken from the perspective of the claimant prior to the collision site. No bus is parked at the bus stop, however, the photograph demonstrates an unobstructed view ahead of the straight stretch of Kurrajong Road outside of Casula Mall.
Photograph 10 shows the insured vehicle after the collision on Kurrajong Road. It depicts extensive damage to the front end, passenger side. The air bag is deployed.
Photograph 12 shows the claimant’s vehicle, Nissan Pulsar, after the accident, mounted on the kerb with the front passenger side resting on the road. The photograph depicts damage to the back passenger side panel of the vehicle, around the rear wheel. The bumper bar is missing.
Other evidence
The property damage files before me confirm that both vehicles were “written off” by the property damage insurers.
WRITTEN SUBMISSIONS
Claimant’s submissions dated 27 September 2022
Noting the damage to the vehicles and the claimant’s evidence that her vehicle spun 180 degrees, it is submitted that in such circumstances, “the respondent insured driver was travelling at an excessively high speed and was driving in a reckless manner”.
It is submitted that on the photographic evidence, the insured had their forward view of Kurrajong Road significantly obstructed by the stationary bus. She then had to drive her vehicle around the bus where there was no designated lane to do so positioned to the right of the bus. And further “inevitably had to then veer to the left towards the kerb on Kurrajong Road in order to avoid colliding with the angled traffic island which was located in front of the stationary bus”.
The written submissions include a submission as to the NSW Road Rules 2014, relating to overtaking stationary buses. It was formally confirmed at the assessment conference that the claimant abandons such submission. I therefore have not considered same.
The submissions assert the insured was driving at such a speed where she had to both brake and then swerve prior to colliding with the left rear of the claimant’s vehicle.
The claimant notes that Kurrajong Road is divided by 2 parallel lines and that “more than likely would have to be crossed over by any overtaking vehicle”. It is submitted that the insured failed to drive in an appropriate manner and at an appropriate speed which was ultimately the “sole” cause of the accident.
The submissions state that:
“the claimant was entitled to assume that in the absence of any oncoming traffic, she could safely complete her turn, which she almost did, save for the reckless actions of the respondent insured driver at fault.”
Relying on the case of Dungan v Chan [2013] NSWCA 182, the claimant submits that the insured failed in all the circumstances, to exercise the degree of care that the subject circumstances required.
Insurer’s submissions dated 8 February 2022
Following summary of the evidence and the legislative framework, the submissions are short. They state as follows:
“The evidence indicates that Ms Khan attempted to make a right hand turn into the driveway across the insured’s vehicle path of travel. The insured was travelling straight along Kurrajong Road and was unable to avoid the collision due to the sudden turn made by Ms Khan.
It follows that a reasonable driver in Ms Khan’s position ought to have known or anticipated that there would be oncoming traffic with the right of way. Had Ms Khan kept a proper lookout the injury would have been avoided.
The insurer submits that the evidence available indicates that the accident was caused wholly by the fault of Ms Khan.”
ASSESSMENT CONFERENCE
Prior to the claimant giving evidence I heard from the parties regarding the issue of the insurer alleging in their denial of liability notice and submissions that the claimant was “wholly” at fault, as opposed to “mostly” at fault. Mr Tzatzagos noted that the language contained within Schedule 2 of the MAI Act referenced “mostly at fault”. Mr Tzatzagos submitted that there was an estoppel involved if there was to be a position taken by the insurer that if the claimant is found not wholly at fault, she was instead “mostly at fault”.
As I understand it, Mr Tzatzagos, submitted that if the matter were to proceed where an argument on “mostly at fault” was made then this would amount to procedural unfairness as this departed from the case presented by the insurer.
Ms Gumbert submitted there was no procedural unfairness as the arguments would effectively be the same, on either scenario, in all material respects.
Lengthy discussions were had in respect of the issue. However, ultimately it was confirmed by Ms Gumbert that the insurer does not depart from the allegation that the claimant was “wholly” at fault and there would be no alternative argument made in respect of the degree of any contributory negligence.
On such basis, I was content for the matter to proceed to hearing on the day. However, I noted that if in my deliberations, I came to the view that I required further submissions from the parties on the issue of contributory negligence I would provide both parties with reasonable time to provide same.
Claimant’s evidence
Ms Gumbert questioned the claimant on her statement where she estimates that she stopped before turning into the driveway for 10-15 seconds. The claimant confirmed this was the length of time she was stationary. She gave evidence that she observed the bus at the bus stop, and she estimates that she waited around 5 seconds after the bus stopped before making the right hand turn. She denied that no other car drove past her travelling in the opposite direction.
The claimant was asked whether there was sufficient room for a car to travel around the bus stopped at the bus stop. The claimant stated that she was unsure. She also was unsure as to whether she has ever seen a car travel around a bus stopped at the bus stop, when she has travelled to Casula Mall in the same manner on previous occasions.
Photograph 6 included in the investigation report was provided to the claimant. Under questioning, the claimant stated that when she was turning right, she could not see anything travelling behind the bus.
The claimant denied that she did not check for oncoming traffic before making her turn. She stated that she was almost inside the driveway when the collision occurred, and denied a suggestion that she was still in the westbound lane of Kurrajong Road. The claimant agreed that she did not see the insured vehicle prior to the impact.
Insured driver’s evidence
The insured driver gave evidence via a separate video link. She confirmed that she had taken only a brief look at her statement of 29 May 2021 prior to giving evidence. She said that she remembered the accident slightly, but remembered everything at the time of giving her statement.
She stated that she obtained her “L” plates at the age of 16 and has been driving for 10 years.
Under questioning by Ms Gumbert, the insured stated that as she approached the raised pedestrian crossing she would have slowed down to approximately 40kmph and then accelerated after up a bit towards 60kmph.
The insured confirmed that she recalls a bus being stopped at the bus stop to the left. She described there being vehicles ahead of her in the distance travelling in the same direction, and confirmed that she saw those vehicles travel around the bus.
The claimant described the roadway as such that there is sufficient room to travel around a bus when it stopped to the left. She denied that her wheels travelled over the centre lines of Kurrajong Road when she went around the bus. She stated that there was sufficient room to go around without such need.
She stated that once she passed the stationary bus, she then saw the claimant’s car. She described it as words to the following effect: “it was within a blink of an eye she was in front of me. My instinct was to brake and swerve to the right hand side…”
Mr Tzatzagos confirmed with the claimant that she described having a “slight” memory of the accident and that her memory was better at the time of providing her written statement.
The insured was asked to agree that she did not in fact see vehicles in front of her travel around the stationary bus, having made no mention of this in her statement. The insured answered along the lines of that she was not sure about the statement, and confirmed that there were in fact cars in front of her. She stated it was a brief statement and she did not go into full details.
It was also put to the insured that the stationary bus obstructed the view of traffic going both ways and the driveway to Casula Mall. The insured denied this and stated that there was “quite a distance” from the driveway to the bus stop.
The insured also denied that she was accelerating as she was passing the bus. She stated that she accelerated after the pedestrian crossing and then maintained her speed. She confirmed that she was travelling at that time around 50 to 60kmph and denied the suggestion that she was travelling “much faster” than this.
Mr Tzatzagos put to the insured that she hit the claimant’s vehicle with such force that it caused it to spin. The insured denied this and stated that it did not spin and instead it went up the gutter where the bus stop was.
Oral submissions of the insurer
Ms Gumbert noted the insurer relied on the previous written submissions. It was further submitted that the insured driver was travelling straight along the road, and she was not speeding, and there is no evidence she was speeding. As she approached the subject entrance to the Casula Mall, the claimant was “quite plainly” required to give way, and she failed to do so.
It was highlighted that the accident occurred in the insured driver’s traffic lane, and the first time she saw the claimant’s vehicle was when it turned in front of her. In such circumstances, it cannot be said that the insured driver breached her duty of care, and there is nothing she did that contributed to the accident.
It was submitted that the finding should be that the claimant was wholly at fault for the accident.
Oral submissions of the claimant
Mr Tzatzagos submitted that one of the most telling factors of this case is the insured’s statement that she became aware of the claimant’s vehicle in a blink of an eye. It was submitted that if the insured was travelling at an appropriate speed, one would expect that she would have said in her statement that as she approached the intersection she saw a vehicle stopped in the opposite direction. Instead she was accelerating and she was driving in such a manner that she was not aware of its presence until a blink of an eye.
It was submitted that the insured’s vehicle was in a perpetual state of acceleration and was driving past a shopping centre and past a bus, with the entrance to the mall obscured by the bus. In such circumstances the insured should have at least steadied her travel until she had passed the bus and surveyed the road in front of her.
In summary, it was submitted that the most probable set of facts is that the insured driver was accelerating and continued that while overtaking the bus, and as the claimant was just about completed her turn she was hit with significant force.
Mr Tzatzagos also referenced the damage to the vehicles in support of the claimant’s case. I asked Mr Tzatzagos to address me on the position of the damage of the vehicles on the basis that the insured driver had braked and swerved to the right.
Mr Tzatzagos replied by stating that if that were the case then the insured would have collided with the traffic island. He also conceded that he did not put to the insured driver that she did not swerve.
FINDINGS AND REASONS
The claimant’s submissions are largely centred around an allegation that the insured driver was travelling at an excessive speed and/or was speeding. After considering the documentary and oral evidence, I do not find such assumption to be made out on the evidence. It is merely an allegation without any objective basis.
Whilst it was put to me that the damage to the vehicles suggest the insured was travelling at an excessive speed, no expert evidence as to the forces of the accident is before me.
I observed the insured driver to be a witness of truth and I consider she was careful to provide truthful answers. I formed the opinion that she was at times a little frustrated and annoyed, but at no time did I form an impression that she was untruthful.
I accept the insured driver’s evidence that she was travelling at around 50 to 60 kmph at the time of the accident. This is within the speed limit. Whilst there is no expert evidence as to the damage to the vehicles, I would expect that an impact at such speed would generate more than insignificant damage to the vehicles involved. I do not accept that the damage to the vehicles is inconsistent with the insured’s evidence.
I also accept the insured’s evidence that there was sufficient room within her traffic lane to manoeuvre around the stationary bus without crossing over the centre lines.
In respect of damage to the vehicles, I also accept the insured’s evidence that when she saw the claimant that she braked and swerved to the right. I find such factual scenario to be consistent with the damage to the vehicles consisting of passenger side front end damage to the insured vehicle and damage predominantly to the back passenger panel of the claimant’s vehicle.
Furthermore, whilst the claimant suggests she was substantially within the driveway itself at the time of impact, I am more persuaded by the insured driver’s evidence of braking and swerving to the right. Accordingly, I find it more likely that the claimant was not within the driveway at the point of impact.
The claimant has confirmed in both her statement and oral evidence that she did not see the insured vehicle at any time prior to the impact. This is plainly evidence that the claimant failed to keep a proper lookout for oncoming traffic. Whilst there was a suggestion that the claimant’s vision was obscured by the bus, I find that had she have kept a proper lookout she would have observed the insured vehicle. Whilst I could perhaps accept that the view of traffic behind the bus may have been obscured, the photographs described above make it clear that once a vehicle travelled around to the right of a stationary bus at the bus stop, such vehicle would be within the view of the claimant. Accordingly, from at least the length of the bus and several metres ahead of the bus until the subject driveway, the claimant should have reasonably had vision of the oncoming insured vehicle.
I find that a reasonable person in the position of the claimant would have observed the insured’s vehicle approaching and would have waited to make a right hand turn across the westbound lane.
Instead the claimant failed to give way to oncoming traffic and turned suddenly in front of the insured driver, as she was lawfully required to do, and in doing so caused the accident to occur. In such circumstances, I accept the submission that there is nothing the insured driver could have done to avoid the accident.
On the above basis, I find the claimant to be wholly at fault. It therefore follows that I make a finding that the claimant is mostly at fault for the purposes of ss 3.11 and 3.28 of the MAI Act.
COSTS
As a regulated miscellaneous claims assessment matter under Schedule 1,
cls (3)(2)(d)&(e) of the Motor Accident Injuries Regulation 2017 (the Regulation), legal costs may be awarded.Schedule 1, cl (3)(1) of the Regulation provides that the maximum costs for legal services provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units.
The current value of a monetary unit is $112.53.
I have found against the claimant. That fact does not, however, preclude me from awarding legal costs.
I have not received submissions as to costs. However, the claimant’s written submissions state that the claimant reserves the right to lodge submissions as to costs in accordance with s 8.10 of the MAI Act.
I do not consider this matter falls within the “exceptional costs” criteria.
I award costs at the maximum regulated fee, which totals $1,800 plus GST.
CONCLUSION
For the purposes of s 3.11 the motor accident was not caused by the fault of another person.
For the purposes of s 3.28 the motor accident was caused mostly by the fault of the injured person.
Effective date: This determination takes effect on 9 November 2021.
Legal costs: The amount of the claimant’s costs assessed in accordance with the Regulation is $1,800 plus GST.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Regulation, and
· Civil Liability Act 2002.
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