Kriske v QBE (Insurance) Australia Limited
[2021] NSWPIC 247
•16 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Kriske v QBE (Insurance) Australia Limited [2021] NSWPIC 247 |
| APPLICANT: | Cathy Kriske |
| RESPONDENT: | QBE (Insurance) Australia Limited |
| MEMBER: | Terence O’Riain |
| DATE OF DECISION: | 16 July 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Miscellaneous Claims Assessment; whether the claimant was wholly or mostly at fault for the motor accident for the purposes of section 3.28 of the Motor Accident Injuries Act 2017 (2017 Act); whether the motor accident was a no-fault accident for the purpose of Part 5 of the 2017 Act; claimant injured when riding her motorcycle; insurer declined liability for payment of statutory benefits beyond first 26 weeks on the basis claimant wholly at fault and not a blameless accident; internal review confirmed original decision; claimant submits there was a slippery substance on the road causing the bike to slip; tibial plateau fracture; surgeon inserted plates and screws into lower leg; insurer disputes the existence of slippery substance; Held- claimant has not discharged onus on her demonstrating involvement of a slippery substance on the roadway in the accident; satisfied in the circumstances the accident was wholly the claimant’s fault; not a no-fault accident; claimant entitled to legal costs. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.28 the motor accident was caused wholly by the fault of the injured person. 2. For the purpose of part 5 of the Motor Accident Injuries Act 2017 the motor accident was not a no fault accident. 3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,826.18, inclusive of GST. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
The matters for determination relate to a miscellaneous claim which is a reviewable decision under Schedule 2, clause 3(e) of the Motor Accident Injuries Act, 2017 (the 2017 Act) about whether Cathy Kriske (the claimant) was wholly or mostly at fault for the motor accident (the accident) for the purposes of section 3.28 of the Act[1].
[1] s3.28:
(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%....
The further matter for determination relates to a reviewable decision under Schedule 2, clause 3(g1) of the 2017 Act about whether the motor accident was a no-fault accident for the purpose of Part 5 of the 2017 Act[2].
[2] Part 5 Recovery for no-fault motor accidentsI am not bound by the rules of evidence and may inquire into any matter relevant to the issues in dispute in such manner as I see fit.
Background
The claimant completed an Application for Personal Injury Benefits on 8 September 2020 in respect of injury sustained whilst riding her motorcycle (bike) on a weekend group ride on 5 September 2020.
Statutory benefits were paid for 26 weeks.
On 25 November 2020 the insurer declined liability for payment of statutory benefits beyond the first 26 weeks after the accident on the basis the claimant was wholly at fault for the accident and that it was not a blameless accident.
On 1 February 2021 the insurer issued a response to the claimant’s Application for an internal review, which confirmed the decision that the claimant was wholly at fault for the accident.
The claimant lodged an application in respect of a Miscellaneous Claims Assessment with the Commission on 3 March 2021.
On 19 May 2021 a teleconference was held with the parties attending. I directed the parties to provide further submissions regarding the no-fault accident.
It was further directed that the assessment would be made on the papers provided to the Commission.
The circumstances which are uncontroversial are that about 11.40 am on 5 September 2020, the claimant was riding her bike in a group of four motorcycle riders and one pillion passenger, travelling west from Penrith on the Great Western Highway from Penrith to Katoomba.
At Blaxland the claimant became separated from her co-riders, who were ahead of her with cars travelling between them.
The claimant was in an 80 kph zone approaching a 60 kph zone.
The highway is dual lanes (3.3 m wide each), with a breakdown lane (2.8 m) and broad median strip (4.7 m).[3]
[3] Attachment 4, Verifact report dated 15 October 2020
The traffic had slowed.
There had been a multiple car rear end collision in lane 1 between 60 and 90 minutes prior to the claimant's accident. The damaged cars were parked in the breakdown lane.
The claimant was travelling in lane 2 at a speed of 25 to 30 kph behind a white Ford.
The claimant says that she was travelling at a safe distance from the vehicle in front.
The claimant says that she saw the brake lights turn red and the claimant applied her brakes.
The bike fell on its right side skidding on the road with the claimant's right leg underneath it.
When the bike stopped the claimant was unable to move the bike and her right leg was pinned on the road.
The claimant’s riding companions, including her husband returned to assist her.
Ambulance crews attended to treat the claimant. This included pain relief and assessment of her injuries, which appeared restricted to her lower right limb.
Later the claimant was transported to hospital, where it was confirmed that she had broken her lower right leg.
The claimant later underwent an operation to reduce the fracture.
What is disputed is whether the accident was wholly or mostly the claimant’s fault under section 3.28 or whether it was a no-fault accident for the purpose of Part 5 of the 2017 Act.
Documents considered
I have considered the documents provided as follows:
(a) Application for Personal Injury Benefits dated 8 September 2020.
(b) Police Event Report dated 11 September 2020.
(c) NSW Ambulance records dated 24 September 2020.
(d) Verifact report dated 16 October 2020 including claimant’s and attending police officer’s statements, accident site plan and photographs numbered 1 to 5.
(e) Insurer’s Liability Notice dated 25 November 2020.
(f) Internal Review Decision dated 1 February 2021
(g) Insurer’s submissions dated 7 April 2021.
(h) Claimant’s submissions dated 3 March 2021.
(i) Insurer’s supplementary submissions dated 20 May 2021.
(j) Claimant’s supplementary submissions dated 27 May 2021.
Evidence
In the claimant’s account of the accident in her Application for Personal Injury Benefits dated 8 September 2020 she wrote:
"Traffic slowing down in front signs of accident people slowing stopping to look had plenty of distance between me & car in front doing under 40 km then car in front must have braked suddenly so I braked suddenly also there may have been oil on road as result of suddenly braking bike to slid out from under me" (sic)
In the Police generated Event reference number E 75838619 the Crash Summary reads:
“Around 11 45 on Saturday the 5th September 2020, 50 year-old female rider, riding a white Honda VT7505 motorcycle west along the Great Western Highway, Blaxland when she locked up the front wheel, resulting in her coming off the motorcycle This incident occurred some 200 m west of the Hope Street intersection As a result of the accident, the female rider suffered an unknown injury to her right knee. Rider was conveyed to hospital”
In the claimant’s statement dated 29 September 2020 given to Verifact she states:
“ 7. I own a 2010 white Honda VT 750S motorcycle New South Wales registration number LJM59. I will have owned it about twenty one months. It does not have a Go Pro type of camera.
8. The tyres that were on my motorbike were about 12 months old and they are in good condition. They are still like brand-new. I usually ride only on weekends and don't really ride during winter because it is too cold.
9. I have put about fifteen thousand kilometres on it since I owned it and I am very used to riding it.
10. I remember it was Saturday the fifth of September, 2020. It was a beautiful day. The sky was clear and the road was dry.
11. I was riding with my husband Keith and three friends. Keith was on his bike and the three friends were on two bikes.
12. Three friends were John MILES, Chris HOWARTH and Denise DAVIS.
13. We were riding from MCA at Penrith to Katoomba.
14. I was riding on the Great Western Highway at Blaxland. I was last in our group.
15 At the time I was wearing motor cycle boots, jeans, motor cycle jacket, gloves and a Shoei helmet.
16. We left MCA at Penrith 11:28 AM. My timeline on google maps shows I was at Blaxland from 11:42 AM until 12:19 p.m.
17. The traffic was heavy and we became separated by cars.
18. I was riding in the lane beside the centre island. The Great Western Highway has two lanes going towards Katoomba.
19. I know the Great Western Highway in the Blue Mountains reasonably well.
20. The speed limit in this part of the great Western Highway is 80 km/h. I was still in the 80 zone coming up to the 60s.
21. I was following a white Ford sedan, an older style Ford. I was a fair distance behind it and we were doing between 25 and 30 km/h.
22. There had been an accident and traffic had slowed down. I'm pretty sure the Ford in front of me braked and I braked.
23. It was like slipping on a banana skin and the bike suddenly went down on my right. I don't know if there was oil, coolant, brake fluid, any one of those on the road from the previous accident.
24. When I went down and the bike stopped, I was on my right arm and my right leg. I was able to keep my head up and it didn't hit the ground.
25. I tried to pull my leg out from under the bike. I think I did get my leg out, but I couldn't move it.”
The notes from the attached ambulance report dated 24 September 2020 contain this reference to how the accident occurred:
“Pt was riding motorcycle westbound along GWH travelling at 40km/h when traffic in front of her suddenly slowed down, pt attempted to brake heard(sic) and slid bike along the road as a result, pt slid bike along the road as a result, pt slid along road with her (R) side, nil impact cars…..”
Included with the Verifact report is a transcript of a record of interview on 3 October 2020 between the Verifact investigator and Senior Constable Christopher New who was officer in charge (OIC) attending the accident in answer to an emergency call.
The transcript is extensive, but only in part addresses the relevant facts in issue.
In that interview it was confirmed that there were no available independent witnesses to the event.[4]
(a) [4] Question and answer 108 Verifact report dated 16 October 2020
To questions 25 and 26 the OIC gave extended answers to the investigator’s questions on the examination of the accident site.
The OIC confirmed that he spoke to the “ambos” to obtain a brief assessment of the situation.
At the end of the 3rd paragraph of answer 26 the OIC says after speaking to other riders in the group: “At this particular point, it appeared that no one else was involved. Yeah, she seemed to have just for whatever reason has come off her bike.”
In the following sentence the OIC addresses his examination of the road in lane 2:
“In lane 2, there was noticed some, there was probably two gouge marks, probably 30 centimetres apart. That expanded 10, 15 metres down the road where the bike had obviously come down and slid. Before those gouge marks, there’s probably about a 5, 10 metre black liquorice kind of line where it looks like a tyre had locked up, or some indication of that before the scratch mark, or the gouge marks. I took some, two photos of that looking east. So from the gouge marks backwards, and then from the other way looking west from the black line to where the rider would have been sitting on the roadway.”
The investigator did not obtain copies of the OIC’s photos or ask the OIC, who was the author of the Police event report why he concluded that it was the front tyre which locked up.
The OIC told the Verifact investigator that he only asked the claimant her name, date of birth and address.
Submissions
Claimant’s submissions
In the submissions dated 3 March 2021 the claimant submits that due to the manner of how the accident occurred that it is more likely than not that there was a slippery substance on the road, such as oil or another lubricant which caused the claimant's bike to slip.
As a result of the fall, the claimant's motorcycle fell on top of her leg causing a tibial plateau fracture. Ambulance officers treated the claimant at the scene, including a pain control measure known as a green whistle (a non-opioid alternative to morphine[5]).
[5] >
The claimant received morphine prior to transport to Nepean Hospital.
The claimant saw a male police officer at the scene, but she did not speak to that officer.
The claimant was transferred to a private hospital and received surgery on 9 September 2020 to her leg.
The surgeon inserted plates and screws into her lower leg.
For the purposes of the 2017 Act the insurer conceded that the claimant's injuries did not fall within the definition of minor injury.
The insurer paid statutory benefits to the claimant for the first 26 weeks.
On 25 November 2020, the insurer notified the claimant that liability was denied for statutory benefits after the first 26 weeks on the basis that the claimant was wholly at fault for the subject accident. The end of the first 26 weeks fell on 6 March 2021.
The same notice informed the claimant that the insurer had determined that the accident was not a blameless accident.
In the letter dated 25 November 2020, the insurer stated that it had relied upon the following documents to support its assessment:
· claim form dated 8 September 2020;
· police report dated 11 September 2020, and
· factual report with statements dated 15 October 2020.
At the claimant's request the insurer conducted an internal review of its decision. On 1 February 2021 the insurer affirmed its original decision in a letter to the claimant.
The internal reviewer determined that the claimant was wholly or mostly at fault for the accident stating, "as you negligently drive your vehicle which resulted in a loss of control of your motorcycle".
The claimant's submissions refer to the claim form completed three days after this accident.
The claim form included the reference to "may have been oil on road", referring to the reason the claimant's motorcycle slipped when she suddenly braked.
There are no references to the road being slippery in the ambulance report.
The claimant submits this does not necessarily mean that the road was not in fact slippery and that there was not a substance on the road that caused the claimant to slip.
The claimant refers to her statement to the factual investigator on 29 September 2020.
The claimant states at paragraph 23: "it was like slipping on a banana skin and the bike suddenly went down in my right. I don't know if there was oil, coolant, brake fluid, any one of those on the road from the previous accident."
The insurer's internal review decision refers to the OIC's statement. The OIC states words to the effect that there was no evidence suggesting there was a slippery substance on the road surface.
The claimant submits that is not clear if there was any actual investigation in relation to the condition of the road surface.
The submissions refer to the claimant making a GIPA request to New South Wales Police for records relating to the investigation. (To date no GIPA documents have been lodged with the portal).
Due to a lack of independent witnesses or contrary evidence, the insurer relied upon the ambulance and police reports in its finding that the claimant was wholly at fault for the accident, and that she suddenly braked hard due to the vehicle in front braking, and in doing so caused her motorcycle to slide.
The claimant submits that although she needed to apply brakes due to the vehicle ahead of her coming to a stop, the claimant was travelling at low speed and the bike would not have slid in the absence of a slippery substance on the road as the claimant describes.
The claimant's version of events in the application for personal injury benefits was provided almost contemporaneously with the accident.
The claimant's representative refers to the claimant receiving morphine at the scene of the accident but does not explain the relevance to the fact in issue.
In the circumstances, the claimant submits that this was a blameless accident pursuant to section 5.1 of the 2017 Act, as the accident was not caused by the claimant or any other person.
Section 5.3 (2) states that "a declaration by the applicant that the motor accident was a no-fault motor accident is evidence of that fact in the absence of evidence to the contrary".
The claimant submits there is no substantive evidence to the contrary of the claimant's declaration that there was a slippery substance on the road and in those circumstances it is submitted that this is a blameless accident and the claimant statutory benefits should be reinstated to continue beyond the first 26 weeks following the subject accident.
Insurer’s submissions
The insurer urges me to apply the approach of Davis J in The Nominal Defendant v Cordin[6], being that the correct approach to the evidence is not to assess whether that evidence is inconsistent with or excludes the involvement of a slippery substance on the roadway, but rather I should assess the evidence globally to decide if the claimant has discharged the onus on her of demonstrating the involvement of a slippery substance on the roadway in the accident.
[6] The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 at [219]
The insurer submits that the claimant’s evidence is a belief of the possible involvement of a slippery substance, first articulated some three days after the accident. Against that, there is no contemporaneous mention in any of the material of a slippery substance on the roadway.
Further, the insurer submits that the following factors point against the claimant’s contention of the involvement of a slippery substance on the roadway in the accident:
(a) there is no reference to a slippery substance, or any substance, on the roadway in the ambulance report;
(b) there is no reference to a slippery substance, or any substance, on the roadway in the police report;
(c) Snr Cst New, the OIC attended the accident scene and conducted an investigation. Snr Cst New did not observe any slippery substance, or any substance, on the roadway;
(d) the observation made by Snr Cst New of skid marks on the roadway is consistent with the wheel of the claimant’s motorcycle locking up due to her sudden braking, rather than losing traction on a slippery surface;
(e) the claimant conceded in her 29 September 2020 statement that she did not observe any slippery substance, or any substance, on the roadway. In fact, she was frank in her admission that she did not know the cause of the accident;
(f) the claimant was the last rider in her motorcycle group. Her husband Keith, and their three friends - John Miles, Chris Howarth and Denise Davis – all successfully traversed the roadway without incident. If there had been any slippery substance on the roadway, other members of the motorcycle group would surely have encountered it, or, at least observed it;
(g) there were no prior or subsequent complaints made by members of the public of any slippery substance, or any substance, on the roadway. If there had been any slippery substance on the roadway, other members of the public would surely have encountered it;
(h) there were no prior or subsequent attendances of emergency personnel to remove any slippery substance, or any substance, from the roadway. If there had been a slippery substance on the roadway, presumably it would have remained there and continued to pose a hazard to other motorists until it was removed;
(i) there is no evidence the prior motor vehicle accident resulted in any slippery substance, or any substance, being deposited on the roadway. That accident occurred in a different lane. It also occurred approximately 1.5 hours prior to the claimant’s accident. Again, if there had been any slippery substance, or any substance, deposited on the roadway as a result of the prior accident, other members of the motorcycle group, other motorists and attending Police would surely have encountered it, and
(j) in all of the circumstances, the insurer submits the claimant was wholly at fault for the accident. Consistent with the available evidence, and her own admissions, she simply braked suddenly and subsequently lost control of her motorcycle.
The insurer further contends the accident was not a ‘no-fault accident’ or ‘blameless accident’ within the meaning of Part 5 of the 2017 Act.[7]
[7] 5.1 Definition of “no-fault motor accident”The insurer submits that the claimant lost control of her motorcycle as a result of her own actions in braking suddenly. The evidence establishes the accident was caused by the claimant in the use or operation of her motorcycle.
In further submissions dated 20 May 2021 the insurer addresses this aspect further:
“Part 5 of the MAIA follows closely Division 1 of Part 1.2 of the Motor AccidentsCompensation Act 1999 (NSW) (MACA) concerning ‘blameless motor accidents’.”
The correlation is indicated in the heading to each section of Part 5 of the MAIA. The definition of ‘blameless accident’ in section 7A of the Motor Accidents Compensation Act 1999 (NSW) (the 1999 Act) is also closely similar to that of ‘no fault motor accident’ in section 5.1 of the MAIA.
“If the Member accepts the insurer’s primary submission, that the claimant’s injury was clearly caused by her own fault in braking her motorcycle suddenly and losing control, the accident was therefore caused by the fault of the driver of the motor vehicle (the claimant), and is not a ‘no-fault accident’.
Even if it is open to the Member to find that the accident was not caused by the negligence of the claimant (and the insurer respectfully submits that this finding is not open), the claimant is not entitled to rely on Part 5 of the MAIA by reason of section 5.4:
(1) There is no entitlement to recover damages because of the operation of this Part in respect of the death of or injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver.
(2) The death of or injury to a person is taken to have been caused by an act or omission of the driver for the purposes of subsection (1) even if—
(a) the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or (b) the act or omission was involuntary, or
(c) the act or omission was not the sole or primary cause of the death or injury.
As can be seen, a motor accident can be ‘caused by an act or omission of a driver’ for the purposes of section 5.4, even if there was no ‘fault’ on the part of the driver, or indeed even if the conduct of the driver is the not the sole or even the primary cause, of the accident.
In Hossain v Mirdha[8], the plaintiff braked and swerved to avoid a dog that ran onto the road, causing the plaintiff’s vehicle to collide with a stationary truck.
[8] Hossain v Mirdha [2015] NSWDC 108 (Hossain).
Elkaim DCJ held that the act of steering the vehicle away from the dog ‘caused’ the collision in the expansive sense of the word ‘caused’ in section 7E of the 1999 Act (which is in the same terms as section 5.4 of the 1999 Act). The plaintiff was not entitled to damages under the ‘blameless accident’ provisions because of s 7E of the 1999 Act.
In this case, the claimant concedes she applied her brakes heavily, whereupon her motorcycle’s wheels locked up and skidded before losing control.
The same reasoning in Hossain applies here, and the claimant is not entitled to rely on the ‘no-fault’ provisions under Division 4.4, Part 5 of the MAIA.
Further, in Whitfield v Melenewycz[9], a motorcycle rider claimed damages under the ‘blameless accident’ provisions under the 1999 Act when a kangaroo jumped from the side of a remote country road and collided with his motorcycle. The plaintiff did not have time to avoid the kangaroo. The whole event happened in a second after the kangaroo appeared at the side of the road.
[9] Whitfield v Melenewycz [2016] NSWCA 235 (Whitfield).
The Court of Appeal held that where the driver of a vehicle in a single vehicle accident is also the owner of the vehicle, the driver cannot rely on the ‘blameless accident’ provisions under the 1999 Act. That is because the driver cannot use section 7B of the 1999 Act (see 5.2 of the 2017 Act) to deem fault on his or her own part, and then rely on his or her own ‘deemed fault’ to sue his or her own compulsory third party insurer. If it were otherwise, a compulsory third party policy would effectively become a first-party policy.
In this case, the claimant was the driver and owner of the motorcycle. It was a single vehicle accident.
The same reasoning in Whitfield applies here, and the claimant is not entitled to rely on the ‘no-fault’ provisions Division 4.4, Part 5 of the MAIA.
Lastly, in AAI Limited v Singh[10], which is the only reported decision to date which considers the ‘no-fault’ provisions of this Act, the claimant was injured in a motor accident where he was the driver of a truck that rolled while turning a corner, due to the contents of the truck being insecurely stowed. Fagan J found that the accident was not a ‘no fault’ accident because there was fault on the part of someone, namely, the person who had negligently loaded the truck.
[10] AAI Limited v Singh [2019] NSWSC 1300 (Singh).
In this case, the claimant has failed to advance any possibilities as to the likely source of the slippery substance ‘such as oil or another lubricant’ on the roadway.
‘Oil or another lubricant’ does not spontaneously appear on roadways.
Even if it is open to the Member to find that that there was ‘oil or another lubricant’ on the roadway (and the insurer respectfully submits that this finding is not open), the ‘oil or another lubricant’ may have deposited due to the fault on the part of someone – for example, another motorist, road worker, or some other person.
The same reasoning in Singh applies here, and the claimant is not entitled to rely on the ‘no-fault’ provisions Division 4.4, Part 5 of the 2017 Act.”
Claimant’s submissions in reply
In the claimant's supplementary submissions dated 27 May 2021 the claimant's legal representatives addressed the no fault provisions of the 2017 Act, including the insurer's supplementary submissions dated 20 May 2021.
The claimant disputes the insurer's submission at paragraph 9 in the supplementary submissions that the claimant "concedes she applied her brakes heavily, whereupon her motorcycle’s wheels locked up and skidded before losing control".
The claimant contends that the circumstances were as laid out in her application for personal injury benefits and at paragraphs 21and 23 of her statement to the Verifact investigator.
The claimant submits that the cases of Hossain[11] and Whitfield[12] are distinguishable from the current factual dispute.
[11] ibid
[12] ibid
The claimant referring to paragraph 16 of the insurer's submissions, concedes that she is unable to advance possibilities as to the likely source of the slippery substance.
Relevantly the claimant can only speculate as to what the substance was or where it came from and the claimant is not qualified to make such investigations.
In these circumstances the claimant submits that Singh[13] does not apply.
Reasons
[13] ibid
Was there contamination on the road surface
The claimant’s case is that she was keeping a proper lookout and her motorcycle would have not behaved as it did unless there was slippery or oily contamination on the road surface.
However, she cannot offer any positive evidence supporting the presence of contamination.
The most the claimant, doing her best to reconstruct what happened, can do is offer an opinion that there may have been contamination on the surface.
There is no expert report supporting this opinion.
Against that is the OIC’s almost contemporaneous inspection of the accident scene, which confirms that he detected no contamination, but was able to view fresh gouges from the bike dragging on the road and skid marks from a locked wheel on the road surface.
That indicates to me that he inspected the road closely enough to see if there was contamination.
The Verifact photos show that the road surface was in good condition too.
I find that the condition of the road surface did not increase the likelihood of the claimant losing control because the evidence is that the road was in good condition and there is no evidence supporting contamination.
I agree with the insurer’s submission that the correct approach is to assess the material, along with the other evidence, to decide if the claimant has discharged the onus on her of demonstrating the involvement of a slippery substance on the roadway in the accident.
In this case, the claimant has not discharged that onus.
Was the claimant wholly or mostly at fault
It is agreed the claimant was injured in an accident involving the use or operation of a motor vehicle in accordance with section 1.4 of the Act.[14]
[14] Section 1.4 of the Act defines motor accident as follows:
“motor accident’ means an incident or accident involving the use or operation of a motor vehicle that caused the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”
Further it is agreed that the subject incident was a single vehicle accident and that the insurer is the claimant’s motorcycle’s compulsory third-party Insurer.
The insurer seeks to establish that the accident was the claimant’s fault and that the claimant failed to exercise reasonable care and skill in the circumstances.
Fault is defined at section 1.4 of the 2017 Act as “fault means negligence or any other tort.”
Negligence is defined at section 5 of the Civil Liability Act 2002 as meaning failure to exercise reasonable care and skill.
The circumstances are that the claimant was riding on a major highway, which was partially blocked in the circumstances by an earlier traffic accident.
The vehicles approaching that site had slowed to at least half the allowed speed limit and the claimant was following a white Ford.
The claimant sets out in her statement and supporting documentation that she was exercising reasonable care and skill. She states that she had slowed her motorcycle to a speed that she perceived was a safe enough distance from the car in front to avoid a rear end collision.
The statement and claim form are firsthand hearsay and what I consider most helpful and pertinent to my decision.
The OIC’s statement including his recollection of the police site inspection and the Verifact examination providing photos and plans of the road are helpfully probative, while the reports contained in the ambulance notes and police event records are likely to be provided by bystanders and co-riders and carry less weight.
In the claim form the claimant wrote “plenty of distance between me & car in front doing under 40 km.” While in her statement to Verifact she refers to travelling at a speed between 25 to 30kph.
That discrepancy satisfies me that the claimant had a lack of certainty about what speed she was doing, although it is clear she was attempting to drive appropriately for the conditions.
From reading her statement to Verifact it is apparent that she was properly trained and equipped with her motor bike in good mechanical condition.
I accept the claimant as a reasonably experienced rider familiar with the road and the weather conditions as they were that day.[15]
[15] Paragraphs 7–9 Verifact statement
The claimant’s case at its highest is that losing control could have happened due to possible slippery contamination on the road, which is dealt with above, but the evidence in her claim form and Verifact statement confirms that it was her manner of braking that caused the motorcycle to lock and go out of control.
At paragraph 45 of her Verifact statement the claimant says that she does not know what caused the accident.
What is not contested is that the claimant suddenly braked to avoid what she sensed was an imminent collision with the rear of the vehicle.
In her claim form the claimant says that she had to brake “suddenly” because she saw that the car in front of her did the same.
The ambulance notes and police event report say approximately the same thing.
The OIC observed a 5 to 10 metre skid mark at the proximate position of the accident, shortly after the accident which indicates that a wheel on the bike locked.
This indicates that while the claimant says that she was travelling a safe distance behind the car in front and at a safe speed, the claimant observed the brake lights activate and perceived that she needed to brake suddenly because she thought that she was travelling too close to the rear of that car to avoid a collision.
The claimant may have been travelling at what could be objectively a safe distance and speed in the circumstances, but her evidence is that she acted as if she perceived the circumstances required urgent braking.
I find that in the particular moment the claimant did not exercise reasonable care and skill by suddenly applying the brakes, because if she were travelling at what she perceived was a safe speed and distance she could have applied her brakes gradually to bring the bike to a safe stop.
There is no evidence, which supports other factors contributing to the accident, so I am satisfied that in the circumstances the accident was wholly the claimant’s fault as she:
(a) Failed to keep a proper lookout for the vehicle in front.
(b) Failed to keep a safe distance from the rear of the vehicle in front.
(c) Rode her motorcycle at a speed which was excessive in the circumstances.
Was the accident a no fault accident
In order for a claimant to succeed in a no fault or blameless accident the accident must be no one’s fault as confirmed in Singh.[16]
[16] ibid
The claimant’s submissions refer me to section 5.3(2) of the 2017 Act, which states that the claimant’s declaration that the incident was a no-fault accident is evidence of that fact in the absence of evidence to the contrary.
I am comfortably satisfied that the insurer has rebutted that declaration because I have found that it was the claimant’s action that was the sole cause of the accident.
Costs
Costs in miscellaneous assessments are regulated under Schedule 1, Part 1, clause 3 Motor Accident Injuries Regulation 2017 (the Regulation).
Disputes under section 3.28 of the 2017 Act are permitted legal costs at clause 3(2)(e) of the Regulation.
There are no submissions indicating a dispute between Cathy Kriske and the insurer in respect to recovery of legal costs under section 8.8 of the 2017 Act.
The claimant has not made a submission as to costs and the insurer has not either.
It is not necessary that a claimant succeed in an application in order to be awarded costs.[17]
[17] AAI Ltd trading as GIO v Moon [2020] NSWSC 714 [82]
The parties were dealing with complex and difficult factual issues, which required considerable attention.
Both parties lodged material that was thoroughly and professionally prepared and assisted me in my decision.
I am satisfied that the claimant is entitled to the payment of legal costs.
I allow costs in the sum of $1,826 inclusive of GST.
Conclusion
My determination of the Miscellaneous Claim is as follows:
(a) For the purposes of section 3.28 the claimant was wholly or mostly at fault for the accident on 5 September 2020.
(b) For the purpose of section 5.3(2) the accident is not a no-fault accident due to evidence that the claimant's manner of riding contributed to the accident.
(c) Legal Costs: The amount of the claimant’s costs assessed in accordance with the Regulation, is $1,826 inclusive of GST.
Legislation
In making my decision I have considered the following legislation and guidelines:
Motor Accident Injuries Act 2017 (NSW)
Motor Accident Injuries Regulation 2017
Civil Liability Act NSW 2002
Motor Accidents Compensation Act 1999 (NSW)
Personal Injury Commission Rules
Terence O'Riain
Member (Motor Accidents Division)
Personal Injury Commission
5.1 Definition of “no-fault motor accident” (cf s 7A MACA)
In this Part—
no-fault motor accident means a motor accident in the State not caused by the fault of the owner or
driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not
caused by the fault of any other person.
5.2 Liability in case of no-fault motor accident (cf s 7B MACA)
(1) The death of or injury to a person that results from a no-fault motor accident involving a motor
vehicle that has motor accident insurance cover for the accident (within the meaning of section
1.10) is, for the purposes of and in connection with any claim for damages or statutory benefits
in respect of the death or injury, deemed to have been caused by the fault of the owner or driver
of the motor vehicle in the use or operation of the vehicle.
(2) If the no-fault motor accident involved more than one motor vehicle that has motor accident
insurance cover for the accident (within the meaning of section 1.10), the death or injury is
deemed to have been caused by the fault of the owner or driver of each of those motor vehicles
in the use or operation of the vehicle.
5.3 Presumption that motor accident is no-fault (cf s 7C MACA)
(1) In proceedings on a claim for damages in respect of the death of or injury to a person resulting
from a motor accident, an averment by the plaintiff that the motor accident was a no-fault motor
accident is evidence of that fact in the absence of evidence to the contrary.
(2) In connection with an application for statutory benefits in respect of the death of or injury to a
person resulting from a motor accident, a declaration by the applicant that the motor accidentwas a no-fault motor accident is evidence of that fact in the absence of evidence to the contrary.
In this Part—
no-fault motor accident means a motor accident in the State not caused by the fault
of the owner or driver of any motor vehicle involved in the accident in the use or
operation of the vehicle and not caused by the fault of any other person.
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