Lemieszek v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lemieszek v Allianz Australia Insurance Limited [2021] NSWPIC 542
CLAIMANT:	Piotr Lemieszek
INSURER:	Allianz Australia Insurance Limited
MEMBER:	Hugh Macken
DATE OF DECISION:	14 December 2021
CATCHWORDS:	MOTOR ACCIDENTS – contributory negligence; instructing learner driver; onus of proof; inferences to be drawn; failure to provide statements; Held- motor accident was caused by the fault of another person; motor accident was not caused mostly by the fault of the injured person; 10% contributory negligence on the part of the claimant; legal costs, $2,127 inclusive of GST.
DETERMINATIONS MADE:	1. For the purposes of section 3.11 the motor accident was caused by the fault of another person 2. For the purposes of section 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person 3. For the purposes of section 3.38 contributory negligence of 10% is found on the part of the claimant 4. Effective Date: This determination takes effect on 14 December 2021 5. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020 is $2,127.00 inclusive of GST.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

Background

This is a matter in respect to the insurer’s determination of 25% contributory negligence on the part of the claimant.
There was no statement provided in this matter from the claimant nor from the driver who was under the claimant’s instruction at the time of the accident.

Documents Considered

I have considered the documents provided in the application and the reply. The material related to primarily documents and statements provided to the New South Wales Police.

Submissions

I have read the submissions in this matter. The primary submission on the part of the claimant was that the insurer had not made out or provided material establishing that the claimant ought to have advised the student driver to change lanes. The insurer submitted that all the material supports the contention that the claimant ought to have been more vigilant in instructing an inexperienced driver particularly noting the conditions prevailing at the time of the accident.

Reasons

It is common ground that the claimant was a supervising driving instructor for a learner driver. Specifically, the claimant was a 47-year-old man instructing a 55-year-old female driver.
The vehicles were travelling north on the Hume Motorway just north of Marulan. Upon driving in the left-hand lane past the Marulan Weigh Station there was a B Double semi-trailer which was slightly behind them and to their left in a lane which was to merge with the left-hand lane of the Hume Highway. That is, the lane in which the vehicle in which the claimant was travelling was travelling.
There is consensus as to what happened. The vehicle in which the claimant was a passenger was struck from behind and forced off the right-hand verge of the roadway into the bushes which separates the northbound and southbound lanes of the Hume Highway. Breach of duty of care on the part of the truck driver has been admitted. The insurer alleges that the claimant, as a supervising driver, ought to be found guilty of contributory negligence of 25% due to his apparent failure to instruct, warn or advise the driver of the vehicle to either accelerate out of harms way or move into the right-hand lane to allow the truck to enter the left-hand lane. The issues to be determined a relatively straight forward and two-fold. Firstly, was the claimant guilty of contributory negligence? If so, in what percentage?
It is common ground that the claimant had duties as an instructing driver in circumstances where the claimant only holds a learner’s permit to drive. It is also common ground that at the time of the accident it was a wet night, on a motorway with a speed limit of 110 kms and that the learner driver had an authorised speed limit of 90 kms per hour.
The insurer’s contention is that in circumstances where there was a vehicle merging from a left-hand slip lane that the claimant ought to have instructed the driver to change lanes or increase speed to avoid the truck from colliding with the rear of the vehicle. This was in fact how the accident occurred. The claimant’s vehicle was struck from the rear by the insured vehicle.
The insurer submits that a reasonable person in the position of the instructing driver would have instructed the driver of the immediate threat and the need to take immediate action. That is that something ought to have been done and what ought to have been done was that the instructing driver ought to have instructed the driver to change into the right-hand lane.
Whilst contributory negligence is a matter for the insurer to prove I am somewhat hamstrung by there being no statements from either the claimant or the learner driver. This was explained at the assessment conference as a means by which the claimant could withhold the provision of statements until other proceedings are brought in respect to the circumstances of the accident.
Accordingly I cannot hypothesize as to any matter on which the parties contend. That is whether or not the claimant saw the truck. What was the position of the truck at the time it was seen, if it was seen? Was the right-hand lane clear? Were the weather conditions such that the claimant would have been unsafe to change lanes? Were there circumstances it was reasonable for the claimant to stay in the left-hand lane confident that the truck merging into the left-hand lane would stay well behind the learner driver? There are no answers to these questions which are provided on the material because there are no statements provided by the claimant or the learner driver.
I must be satisfied, on the balance of probabilities, that the insurer has made out negligence on the part of the insured driver. Clearly the insurer has admitted breach of duty of care on the part of their insured which is not surprising noting the police report which states that he has merged into lane one of two north bound lanes and felt a bang in front of his vehicle thinking he had struck an animal. In my opinion it is reasonable to conclude that with a B Double truck to the immediate left of the vehicle in which the claimant was the instructor driver the vehicle would in all likelihood have been seen. Noting also that the vehicle was adjacent to the truck and that both vehicles were moving in a northerly direction I accept the insurer’s contention that there ought to have been some instruction as to the taking of evasive action on the part of the claimant. If this occurred, it was opened for the claimant to state that it occurred. If it did not occur, then it was opened for the claimant to put on a statement explaining why it did not occur. There is a reasonable inference to be drawn that a reasonable position in the position of the claimant would have made some observation or suggestion in respect to the position of the truck, its proximity and need to enter into the lane in which the claimant’s vehicle was travelling and that either this did not occur or that it was suggested but the action was not taken. I think in the circumstances where the claimant could have provided an explanation and did not do so, that there is an inference which can reasonably be drawn that this did not occur. (See generally Jones v Dunkel [1959] HCA8).
Accordingly, I find the insurer has made out its contention that the claimant ought to be found to have contributed to the circumstances of the accident.
The question is now what percentage ought to be allowed for contributory negligence.
The overwhelming responsibility for this accident was that the insured vehicle struck the claimant’s vehicle from the rear. The highest that any allegation of contributory negligence can be put against the instructing driver is that he did not advise the claimant to take evasive action. Whilst the facts and circumstances of the accident, together with the inference which can be drawn from the failure on the claimant’s part to provide a statement, support this contention the negligence on the part of the claimant is minimal. Firstly, he was not the driver. Secondly, there may have been concerns about the insured driver changing lanes in wet weather, at night and in relatively high speed. Thirdly, whilst the insurer submits a figure of 25% for contributory negligence, this allegation is made against both the claimant and the learner driver.
I consider the claimant, in circumstances where the contributory negligence relates solely to an omission in respect to an instruction in respect to avoiding an imminent collision, to be minimal.
In all the circumstances I assess contributory negligence on the part of the claimant to be 10%.

Costs

I note there is agreement that the claimant is entitled to costs and disbursements in respect to the GIPA application. I note the disbursements total $466.50 together with regulated costs of $1,660.60. Accordingly I assess costs, including GST in the sum of $2,127.00.

Legislation

In making my decision I have considered the following legislation and guidelines:
• Motor Accident Injuries Act 2017 (NSW) ("the Act")
• Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020 (delete any that aren't applicable)

Hugh Macken

Member (Motor Accidents Division)

Personal Injury Commission

[2021] NSWPIC 542

14 December 2021