Kong v QBE Insurance (Australia) Limited
[2022] NSWPIC 278
•25 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Kong v QBE Insurance (Australia) Limited [2022] NSWPIC 278 |
| CLAIMANT: | George Kong |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | B. K. Nolan |
| DATE OF DECISION: | 25 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - miscellaneous claims assessment; 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; where the motor accident occurred while the claimant was making a left hand turn on an inside lane and insured truck turning from the outside lane collided with claimant vehicle; claimant did not see the insured vehicle prior to the accident; where the insured driver was able to see claimant vehicle; Held– claimant not at fault for the motor accident. |
DETERMINATIONS MADE: | The findings of the assessment of this dispute are as follows:
|
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
BACKGROUND
George Kong (the claimant) is a 55-year-old male born on 11 July 1966. He alleges that on 7 November 2019, an insured vehicle collided into the rear of his vehicle as he was turning left from Bourke Street onto Lachlan Street in Waterloo, New South Wales. In his application for personal injury benefits the claimant alleges that on the day of the accident he was driving his vehicle south-west on Bourke Street in Waterloo. When he approached the intersection of Bourke Street and Lachlan Street, he stopped his car and suddenly the insured vehicle (a concrete truck) collided with the rear of his vehicle.
On 19 March 2021, QBE issued a post 26 weeks Liability Notice advising that the claimant’s entitlement to treatment and care related expenses would cease on 7 May 2020 on the basis that the claimant was wholly at fault. By internal review dated 17 April 2020 this decision was affirmed.
By way of an application for a miscellaneous claims assessment pursuant to s 3.28 (1)(a) of the Motor Accidents Injuries Act 2017 (NSW) (the 2017 Act), the claimant challenges the insurer’s decision that he was wholly at fault for the subject accident.
The insurer qualified Brooksight Investigations to undertake a factual investigation of the circumstances surrounding the accident.
The Brooksight Investigation report records that the claimant was legally represented, and a draft statement was obtained and then emailed for review to the claimant’s legal representative. The claimant forwarded his review and amended signed statement to the investigators on 18 February 2022.
The claimant was interviewed with the assistance of a Cantonese interpreter and produced a statement. In this statement the claimant relevantly states that he was driving along Lachlan Street in the left lane, closest to the kerb, waiting to turn left onto Bourke Street. In the lane to his right, he says that drivers had the option of turning left or right onto Bourke Street. There were a few cars in the lane next to his car. He said there were more than 10 cars stopped in front of him. He said the cars in the lane to his right were moving because they had a green light to turn right into the street. Following the turn, he said he stopped his car at the red light and suddenly heard a loud boom from the heavy collision. The rear right of his car had been hit and was pushed about 1 and 1/2 metres forward.
In photographs, accompanying his application, taken of the rear of the cement truck, immediately, above the truck’s numberplate is the sign which warns of overtaking a turning vehicle, however it is obscured by what appears to be cement. It is not visible to me viewing this photograph, and I infer, would not have been visible to a following driver at the time it was taken, which I infer was on the day of the accident.
In the insured driver’s statement, he says that he had his indicator on for about 50 to 100 metres before the intersection at Bourke Street. He was stationary at the red light when waiting to turn but he cannot recall if there were other vehicles in front of him. He stated that when turning on to Bourke Street from Lachlan Street the cars in the left lane normally stop and give way to the truck as both lanes are required to make the left turn. He said that he was at the green light and started to move to make his turn and was maybe doing between 20 to 30 kilometres per hour. He checked his mirrors and blind spots and as he was turning, he looked in his left mirror and saw a Mercedes hitting the left drive axel which is the second wheel of the rear of the truck. When he noticed the collision, he put on his emergency indicators and hazards and pulled over. The other car pulled over as well behind his truck. In photographs attached to his statement (photograph 1) there is damage to a truck tyre. I am unable to determine what section of the truck this was. In photograph 2 there is damage to the rear of a black Mercedes which is identified as the claimant’s vehicle.
Video Footage
I was provided with video footage which was filmed on the truck’s dashcam. It clearly depicts the insured’s vehicle and the claimant’s vehicle stationary alongside one another, at what I presume to be the traffic lights. The claimant’s vehicle indicates the intention to turn left. It does not appear to me from the footage that the claimant’s vehicle was in a position to be able to see that the insured vehicle intended to turn left. No indicator is visible on the truck.
The video footage demonstrates that the claimant’s vehicle was stationary next to the insured vehicle for a considerable period prior to moving off before the claimant and the insured vehicle commenced the left turn. The shadow cast by the cement truck would suggest that the claimant’s vehicle was not, while it was stationary, behind the insured truck, but adjacent to it.
This lends to the claimant’s statement that he did not see the truck in front of him, which means he could not have seen the indicator, assuming it was illuminated. Rather, the footage being of the dashcam within the truck clearly depicts the visibility of the claimant’s vehicle alongside the truck and the fact that the claimant was advancing to execute the left turn from the inside lane adjacent the truck.
SUBMISSIONS
The insurer submits that the version of events as supplied by the claimant is not supported by the available evidence. It relies upon the statement of the insured driver wherein he stated that he approached the intersection at Lachlan and Bourke Streets and indicated his intention to turn left from the lane closest to the centre. He says that once the light turned green, he checked the left mirrors and all blind spots before making the turn. He said the first time he saw the claimant’s vehicle was in his left mirror when the collision occurred, indicating that the claimant has come from behind. He submits that the claimant’s evidence, that he was suddenly hit from behind and thereafter pushed forward, is inconsistent with photographs and video footage from a mounted camera on the nearside of the insured vehicle which shows the incident occurring (the dashcam). The insurer submits that the footage demonstrates that the insured vehicle was approximately one car length in front of the claimant’s vehicle prior to commencing the left-hand turn. It submits that it is evident that the claimant came from the inside rear of the insured’s vehicle which had already began to move. It contrasts this evidence with the claimant’s report that he was hit from behind and says, rather, that the claimant would have been able to clearly see the insured’s vehicle in the lane beside him noting the size of the vehicle that he was stationary on Lachlan Street for at least 18 seconds.
The insured vehicle has on it very clearly marked next to the licence plate at its rear, a side which says, “DO NOT OVERTAKE TURNING VEHICLE”. The insurer relies upon s 143 of the NSW Road Rules 2014 wherein it is stated that a driver must not drive past or overtake to the left a vehicle displaying a “do not overtake turning vehicle” sign if the vehicle is turning left and giving a left change of direction sign.
Based on these matters the insurer submits that the claimant had an obligation to give way to the insured vehicle or was in breach of s 143 of the Road Rules 2014, and given the discrepancy between the video footage and the claimant’s evidence, submits that the claimant must not have been keeping a proper lookout if it is his assertion that he did not see the insured vehicle is to be accepted.
The insurer submits positively that in contrast to the claimant’s allegation that he did not see the vehicle, the video evidence would tend to suggest that he made an attempt to overtake the insured vehicle around the corner and for this reason he is in breach of s 141 of the Road Rules and is therefore wholly at fault for the purposes of s 3.28 (1) of the 2017 Act which would disentitle him to an ongoing payment of statutory benefits for treatment and care after the 26 weeks.
In the alternative, if the claimant is not found to be wholly at fault, he was mostly at fault for the reasons supporting the allegations of wholly at fault.
In his submissions, the claimant sets out the position in which he was in at the time of commencing to execute the turn on the corner of Lachlan and Bourke Streets using a picture from Google Maps (see below). This evidence, in the form of submissions, was not challenged.
[image unable to replicate]He says that he was in the left lane in the position indicated by the blue arrow in the truck was in the position indicated by the red arrow.
He submits that he made a left hand turn with caution as he was driving within the left lane. He submits that the truck failed to turn with care and collided into the rear of his vehicle.
REASONS
The insurer’s decisions in this matter were made pursuant to s 3.11 of the 2017 Act
(cf. s 3.28(1)(a)) on the basis that the insurer determined that the claimant was wholly at fault for the accident.This finding by the insurer pursuant to s 3.11 of the 2017 Act finds no textual equivalent in the disputes prescribed by Schedule 2, clause 3 of the 2017 Act:
(a) Sub-clause (d) refers to whether for the purposes of section 3.11 the motor vehicle accident concerned was caused by the fault of another person.
(b) Sub-clause (e) refers to whether for the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person.
Neither miscellaneous claims matter is the matter determined by the insurer under
s 3.11 of the 2017 Act.In my view, sub-clause (n) of Schedule 2, clause 3 must therefore necessarily be engaged as it provides for the determination of any issue of liability for a claim, or part of the claim, for statutory benefits not otherwise specified in the Schedule as a miscellaneous claims matter.
The relevant matter with which I am seized is whether the insurer is entitled to refuse to continue to pay the claimant statutory benefits beyond 26 weeks further to the provisions of s 3.11 of the 2017 Act. The insurer approached this task by considering that the claimant had failed to exercise reasonable care incumbent upon all road users and considered that if the person caused an accident because of their negligence then they were at fault. It concluded that the claimant, being in that category, was therefore, I interpolate, wholly at fault. By suggesting in the alternative that it is open to me to make a finding of mostly at fault, it ostensibly is conceding that the insured driver may also be at fault.
The relevant inquiry mandated by s 3.11 and s 3.28 of the 2017 Act is an appropriation of fault, namely, whether the injured person is wholly or mostly at fault. The 2017 Act establishes a hybrid scheme of compulsory third party insurance, which provides for statutory benefits for injured road users regardless of fault for 26 weeks (cf. s 3.37 of the 2017 Act which disentitles a person charged or convicted of a serious driving offence related to the accident). After 26 weeks, the insurer may determine that the injured person is disentitled to statutory benefits if, they are wholly or mostly at fault, which is defined as contributory negligence of the injured person of greater than 61%.
Section 1.4 of the 2017 Act defines “fault” as it appears in the 2017 Act to mean “negligence or any other tort”. There is no carve out of this definition for statutory benefits. This connotes tortious liability. Tortious liability is a legal construct which determines civil liability for the injuries caused to a person by another person arising from a breach of a duty fixed by law, the breach of which is redressable in an action for unliquidated damages. In the context of a “motor accident”, it is predicated on a duty of all road users to take reasonable care while using the road. A duty of care is breached when a person is injured because of an act or omission of another person, when it was reasonably foreseeable that the action could cause injury, and a reasonable person in the same position would not have acted that way.
The Civil Liability Act2002 applies to the determination of entitlement to statutory benefits. Sections 3B(1)(e1) and 3B(2) of the Civil Liability Act2002 apply to an award of damages and motor accidents respectively. A determination under Part 3 of the 2017 Act is not an award of damages, which is defined in s 1.4 of the 2017 Act not to include a claim for statutory benefits. Therefore, for the purposes of the determination of liability for statutory benefits, per se, the 2017 Act works to import the statutory codification of the law of tortious liability, and more particularly, the definition of “negligence” in s 5 of the Civil Liability Act 2002, viz. the failure to exercise reasonable care and skill. It does not exclude the common law. A determination of “fault”, therefore, for the purposes of a claim for statutory benefits, commences from the starting point of establishing a person’s or persons’ tortious liability for the cause of the accident under the common law and the Civil Liability Act 2002.
The questions to be asked in determining whether there has been a breach of duty are succinctly expressed in s 5B of the Civil Liability Act 2002. The precautions which a driver is required to take against an identified risk of harm are limited to the precautions which “in the circumstances a reasonable person in the person’s position would have taken”: s 5B(1)(c).
In relation to a collision between two vehicles, self-preservation, or the contributory negligence concept of a duty to take reasonable care for one’s own safety, will usually operate in the same direction as one’s duty to other road users. Thus, a reasonable person in the position of the insured driver, turning left across traffic, would have had a tangible interest in taking precautions not to collide with another vehicle also turning left from the inside lane. That does not mean that the insured driver’s subjective presumption that he had the right of way must dictate the outcome; it is, however, a circumstance to be considered in circumstances where both he and the claimant thought they could safely turn when they did.
As explained by Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [160]:
“In dealing with questions of breach of duty, whilst there is to be taken into account as a ‘variable factor’ the results of ‘inadvertence’ and ‘thoughtlessness’, a proper starting point may be the proposition that the persons using the road will themselves take ordinary care.”
Likewise, in Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [47] referring to that reasoning, Gummow J stated:
“The RTA's duty of care was owed to all users of the bridge, whether or not they took ordinary care for their own safety; the RTA did not cease to owe Mr Dederer a duty of care merely because of his own voluntary and obviously dangerous conduct in diving from the bridge. However, the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe ‘for users exercising reasonable care for their own safety’.”
The test thus applied under s 5B(1)(c) requires the taking of precautions to avoid causing injury to a driver who is perceived to be overtaking on an inside lane. The insured driver’s conduct was not the conduct of a person exercising reasonable care for his own safety or that of the claimant. A road user, taking reasonable care for the safety of other road users, must expect that not everyone will comply with the letter of the road rules. Nevertheless, a driver is entitled to expect that other drivers will take reasonable care for their own safety. It was reasonable to expect the insured to take precautions against the risk of the claimant driver not stopping to give way.
In my view, rule 143 of the Road Rules does not assist the insurer, as it cannot apply because I am not satisfied that the insured truck was “displaying a do not overtake the vehicle sign”. While the truck had such a sign affixed to its rear, it was not displaying it such that it was visible. It was obscured by cement.
Having considered the totality of the evidence, I accept the claimant’s submission that the two vehicles were adjacent one another. I accept the claimant’s unchallenged evidence that the traffic in the right lane was fluid and moving due to the cars turning right, such that the claimant cannot be presumed to have seen the insured truck’s indicator illuminated at any point as the insurer alleges, he must have.
In attributing fault, therefore, which in the statutory context bespeaks negligence, in these circumstances, I am not satisfied that the claimant failed to keep a proper look out, nor do I consider that he acted in a manner consistent with an allegation that he failed to take necessary precautions to prevent a foreseeable harm. He did not perceive the harm and cannot be expected to have taken precautions for it.
In respect of the insured truck driver, the converse is true. The truck driver had affixed to his dashboard a camera which recorded the incident, and which is the subject of evidence before me. It speaks to what the insured driver would have seen had he indeed checked his mirrors and blind spot using the camera. Had the truck driver been keeping a proper look out he would have seen the claimant’s vehicle advancing to execute the left-hand turn without stopping to give way. Even if the truck driver were to have presumed, he had the right-of-way given the effect of the Road Rules, it was incumbent upon him to take necessary precautions when an adjacent driver, did not give way. In these circumstances, I am not satisfied that the claimant is relevantly “at fault” for the purposes of the provision, whether wholly or mostly or otherwise.
Legislation
In making my decision I have considered the following legislation and guidelines:
· Motor Accident Injuries Act 2017 (NSW)
· Motor Accident Injuries Regulation 2017, and
· Civil Liability Act 2002 (NSW).
0
4
0