Luck v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Luck v QBE Insurance (Australia) Limited [2022] NSWPIC 364
Claimant:	Robin Luck
insurer:	QBE Insurance (Australia) Limited
Member:	Susan McTegg
DATE OF DECISION:	4 July 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor vehicle accident; driver; wholly at fault; mostly at fault; liability; miscellaneous claims assessment; causation; Motor Accident Injuries Act 2017 (MAI Act); biomechanical experts; whether claimant wholly or mostly at fault; sections 3.11 and 3.28 of the MAI Act; claimant sustained serious injury; claimant driving his vehicle when lost control, veered over median strip and collided with oncoming vehicle before colliding with another vehicle; oncoming vehicle also collided with another vehicle; claimant asserts unidentified vehicle collided with rear of his vehicle; claimant heard a bang in the back before losing control of his vehicle; two witnesses attested no other unidentified vehicle in vicinity of claimant’s vehicle; question of cause of damage to rear passenger side of claimant’s vehicle; evidence of competing biomechanical experts; Held – no unidentified vehicle collided with rear of claimant’s vehicle; damage to claimant’s vehicle caused as a result of a series of collisions; claimant lost control having accelerated too fast out of sweeping bend on wet road with lack of tire tread; accident caused wholly or mostly by fault of claimant.
determinations made:	1. For the purposes of section 3.11 the motor accident was not caused by the fault of another person 2. For the purposes of section 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person 3. A brief statement of my reasons for this determination are attached to this certificate.

REASONS FOR DECISION
INTRODUCTION

Mr Robin Luck (the claimant) sustained serious injury in a motor vehicle accident on 14 October 2018.
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer liable to pay statutory benefits to the claimant under the Motor Accident Injuries Act, 2017 (MAI Act).
In issue are the following disputes:
a. Whether for the purposes of s 3.11 of the MAI Act the motor accident was caused wholly or mostly by the fault of the claimant.
b. Whether for the purposes of s 3.28 of the MAI Act the motor accident was caused wholly or mostly by the fault of the claimant.
The claimant was the driver of a motor vehicle on Boorea Street, Auburn. Before the intersection with St Hillier’s Road, Boorea Street is called Rawson Road. I understand witnesses who have referred to Rawson Road are, in fact, referring to Boorea Street.
The claimant asserts that the accident occurred because of the fault of an unidentified vehicle colliding with the rear of his vehicle and causing him to lose control of his vehicle, thereby travelling into oncoming traffic and colliding with a black Holden Rodeo driven by Matthew Cantwell and subsequently with a beige Toyota driven by Anna Crawford.
In a notice dated 23 January 2019 the insurer denied liability for statutory payments following the first 26 weeks after the accident. The insurer conceded the claimant sustained serious injury but determined the claimant was wholly or mostly at fault for the accident because he lost control of his vehicle which slid over the centre divider into oncoming traffic causing the collision. The insurer submits there is no evidence of an unidentified vehicle.
On 6 August 2019 the insurer issued a second liability notice denying liability for ongoing statutory benefits on the basis it was not a blameless accident, and the claimant was wholly at fault.
Following the accident, the claimant was charged by police with negligent driving. The claimant contested the charge and the hearing commenced in the Local Court. On 3 March 2020 the claimant was informed that the New South Wales Police Force (NSWPF) had withdrawn the charge against him.
On 5 March 2020 the claimant asked the insurer to reconsider their decision to deny liability in light of the decision by NSWPF to drop the charge of negligent driving. On 23 June 2020 the insurer maintained the denial of liability.
The claimant requested an internal review of that decision on 26 June 2020.
On 17 July 2020 the insurer issued a determination and reasons in support of the internal review decision maintaining the declinature of liability.
On 29 October 2020 the claimant lodged a miscellaneous claims dispute application with the Dispute Resolution Service (DRS).

JURISDICTION

The application in this matter was lodged at DRS.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the DRS was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020.
I am a Member of the Motor Accidents Division of the Commission and clause 14B(1) of the Personal Injury Commission Regulation 2020 designates this DRS application pre-establishment, pending proceedings and clause 14B(3) empowers me to determine this dispute.
Because of the date of the accident, clause 14B(4)(c) provides that the MAI Act, the Motor Accident Injuries Regulation and Part 7 of the Motor Accident Guidelines continue to apply.

DOCUMENTS CONSIDERED

I have considered documents produced under the Government Information (Public Access) Act 2009 (GIPA) by the NSWPF including:
·        NSWPF Event Ref No. E68876823;
·        NSWPF photographs;
·        pages 22-25 of Notebook F645536 of Constable Mustafa;
·        NSWPF site diagram;
·        record of interview between the claimant and Constable Mustafa conducted at Westmead Hospital on 22 October 2018;
·        Traffic Penalty Notice issued to the claimant bearing Infringement No 4048835167;
·        Revenue NSW Request for Review lodged by the claimant together with a supporting statement by the claimant and a photograph of his car;
·        letter from Revenue NSW to the claimant dated 9 January 2019 declining to waive the penalty;
·        statement of Constable Hayley Ryu dated 21 July 2019;
·        pages 34-35 of Notebook F645521 of Constable Ryu;
·        photographs of the accident scene;
·        statement of Senior Constable Brendan Parry dated 2 September 2019;
·        pages 25-29 of Notebook F645409 of Senior Constable Parry;
·        statement of Senior Constable Jon Gayford dated 2 August 2019;
·        statement of Enrong Tao dated 1 August 2019;
·        statement of Stephen Porfida dared 5 August 2019;
·        statement of Matthew Cantwell dated 11 September 2019;
·        statement of Anna Crawford dated 9 August 2019;
·        statement of Ricardo Atanacio dated 26 August 2019;
·        Police Traffic Record of the claimant;
·        photographs (16);
·        the GIO property damage file in respect of the claimant’s vehicle;
·        the property damage file of Hollard (Woolworths Insurance Limited) in respect of the vehicle of Stephen Porfida;
·        the transcript of evidence of Burwood Local Court of 30 September 2019;
·        a report of Grant Johnston, consulting engineer dated 21 March 2022;
·        a report of Glen Urquhart, civil engineer dated 25 May 2021, a supplementary report dated 2 June 2021 and a further supplementary report dated 4 May 2022;
·        documents produced by Coles Insurance relating to the property damage claim in respect of the vehicle of Matthew Cantwell;
·        claimant’s submissions dated 28 October 2020;
·        insurer’s submissions dated 24 November 2020, and
·        insurer’s submissions dated 31 May 2022.
I have also considered a report of Carl Hayes of Motor Accident Claims Services Pty Limited dated 18 April 2019 including:
·        a diagram of the accident;
·        photographs of the accident site including photographs marked indicating the direction of travel of the relevant vehicles;
·        photographs of the accident scene including photographs of the damaged vehicles;
·        statement of Stephen Porfida dated 20 February 2019 but signed 2 June 2022, and
·        statement of Ricardo Atanacio dated 8 April 2019 but signed 5 January 2021.

THE RELEVANT LAW

Section 3.11 of the MAI Act states:
(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%.
Note.
Section 3.38 provides for a reduction of statutory benefits after 26 weeks for contributory negligence of the person not mostly at fault.”
Section 3.28 of the Act states:
(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 EVIDENCE

The claimant’s evidence

The claimant participated in a record of interview with Constable Mustafa at Westmead Hospital on 22 October 2018.
The claimant stated he was driving down St Hillier’s Road from Parramatta Road, Auburn. He was driving a silver BMW registered number BTB64J. He stated there were three lanes of traffic pulled up at the traffic lights at the intersection of Boorea Road. The claimant stated:
“And, as I arrived at the intersection this, there was a green light, they started to move off. I moved off with them and went around the corner. And I started to accelerate, uh, down the street. It’s….out of the corner, there was a big bang. And that’s….anything after that.”
And:
“Next thing I’m, I thought I woke up in the ward, but they tell me I woke up in the Emergency Department”.
After being advised that the interview would be recorded on video the claimant responded inter alia to the questions of Constable Mustafa as follows:
“Q9 So, just clarifying, you’re coming from your sister’s house, or sister in law’s house from Rydalmere.
A.Yes
Q10.We’re just in the middle of a interview, so. Uh, where were you going, where was your intention?
A.Going to Sefton.
Q11.Sefton. Did you stop on the intersection of Saint Hillier’s…
A.Nearly.
Q12.Nearly.
A.It’s all right. I was….like three, a block of cars. Quite a bit of traffic. Three lanes all pulled up, turning left, and…and as I came up in the right hand lane, in the median lane, as I came up to the back of those last cars, they started to take off. So I was kind of rolling.
Q13.When you arrived at that intersection, which lane were you in, the furthest to the right?
A.Yep.
Q14.What speed were you travelling when you were, when you, um, approached that intersection, just?
A.I think 20 and something, I think.
Q15.About 20 kilometres an hour. And then you proceeded to turn…
A.Uh, I…
Q16.….left into Boorea. At what stage did you start to accelerate around that corner:
A.I couldn’t tell you that. Where, wherever’s the normal place. I suppose when I came out of the corn, yep, it’s a very tight corner. So, as I came out of the corner, I, I started to accelerate, that’s when I heard bang.
Q17.Do you know what speed you were going on Boorea?
A.No idea.
Q18.No idea.
A. Might’ve been 50, maybe.
Q19.Did your vehicle have any mechanical issues that you know of?
A.Um, front right shock absorber is due for a replacement.
Q20.Uh-huh. Anything else?
A.Um, not that I know of, I mean the car is pretty well maintained.
Q21.How do you know it’s due for a replacement, what do you mean by that?
A.Because, uh, I took it to a mechanic, there was tyre wearing…on the right hand side. And the mechanic assessed it, he’s, the shock absorber, uh has been slightly bent, probably by major potholes.
Q22.Uh-huh.
A.And. He said, no emergency, but you should get this done in the next few months.
Q23.…..
A.About a month ago.
Q24.OK, In what of condition were your tyres?
A.Think they were, or should’ve been all right. I’d just been at the tyre company….
Q25.Did they replace the tyres at that time?
A.Um, they replaced the tyre a couple of months before.
Q26OK. What were the conditions like on that day? Can you explain it to me?
A.I think it was drizzling.
Q27.Yep. So by drizzling, it was raining.
A.Yeah, just light, like.
Q28.Uh-huh. And what were the road conditions like?
A.Mmm, I was thinkin’ that the road was wet. Wet or damp, I’m not sure. I haven’t got…..
Q29.Did you have, um, your lights on the vehicle, your driving lights?
A. Um, good question. I would normally, yeah, but if it was, what was it, 7 o’clock? I’m pretty, you now, not always the one to put my lights on other than in the rain, so. I would expect the answer’s yes, but I’m not 100 per cent sure. I don’t really…
Q30.Do you remember if the street lights were on?
A.I don’t remember it being that dark. Was it that dark at 7 o’clock….”
And further:
“Q 42. So when you went in the corner, you were in the far right lane, so that’s lane 3, of 3
A.………..
Q43.The median strip lane. Yep. When you went around the corner, do you remember, um going past any vehicles on the left, maybe a Ford….
A.……….
Q44.…like a black Ford Vehicle
A.No. No, I think it was on my left ….there’s I came from Silverwater Road with the traffic.
Q45.Yes.
A.And I went straight into traffic. I was, it stopped at the Parramatta Road intersection. So I came across Parramatta Road. And then I drove with all that traffic down to that intersection, and then it was stopped. And then, as I said, I just come up behind, I was about to stop fully. But it, took off, so I was just, like, I was rolled up with it.
Q46.So when you were turning, you were accelerating, going around, or you start accelerating?
A.Uh, not normally in the turn, but after it, you know.
Q47.Do you remember ever losing control of the vehicle?
A.I just heard a bang, that the last thing I remember. I don’t remember anything until I work up in the ward. I, I, I had a flat back, uh, on Wednesday, that I was lying on the road. And I could see…on the road. And I could see one spire of the mosque. So I must’ve been facing that way, on the ri, lying on the road and I was lying on the road mate. That was all. (sic).
Q48.I’ll explain to you, if you’re reading it….when you were turning, did you ever collide with another vehicle?
A.I got no idea. I was…..I’d been, I dunno whether someone hit me, or something. I ran over something. Or, something broke on the car, or what, but, I mean, a distinct bang is the last thing I remember, it being on the car.
Q49.When you were turning the corner, did anyone ever collide with you or did you hit anyone whilst, at that intersection and turning?
A.Not that I’m aware of, no. It’s just complete, complete and utter stop after they came. And so.
Q50.I’ve just got a few more questions about the incident itself, I understand you said you don’t remember. If I oh, uh, if I keep saying the same thing, it’s not, I’m just trying to clarify a few things. Um do you remember if you lost control of your vehicle before hittin’ that centre, um, island?
A.Did I hit it? …. for me to lose control of the vehicle.
Q51.Why’s that?
A.1’ve spent 40 years doing advanced driver training. And it. I’ve lost control of the vehicle, definitely something difficult. And it certainly…….if my vehicle’s on the other side of the road. Somebody did….and like I had’ve been driving in the oncoming traffic.
Q52.Do you remember if your vehicle went airborne at all?
A.No, I don’t. It’s like someone dropped a rock on my head. Like, its just, I heard that bang and then it’s like, absolute nothing. I can’t remember anything. And as I said, I was, I think it was a Wednesday, the nurse was talking to me, and I had this flashback that I was lying on my side on the road. And I could see….that’s all I remember. I don’t remember the ambulance. I don’t remember the hospital, I don’t remember the emergency…..emergency, I was in emergency, but I don’t particularly……
Q53.You only remember the bang, you don’t remember ever hitting other vehicles, or the incident itself, the crash itself.
A.I wish I did.
Q.54.So you don’t remember crossing to the other side of the road?
A.No.
Q55.You were wearing a seat belt at the time?
A.Always wear a seat belt. I wouldn’t drive out the driveway without it.
Q56.Do you remember if your airbags deployed?
A.No, but, there was a problem with…..for sure. Cause my son said he took photos of the car and he, like, passenger side air bags one off. But not on the driver’s side. And then I got a notice about an air bag fault about a month ago. And I immediately rang them on the same day. And they contacted, I think it was BMW head office and they said that’d call in to book a time to come in and have the air bags replaced.
Q57.OK.
A.Said my car had fault air bags. So I think I rem, it feels like I…cause the once that go off apparently have…
Q58.Right.
A.You know about this problem?
Q59.No.
A. Takata air bags….it’s millions of vehicles. Cause when the malfunction shrapnel comes out and hits you in the face.
Q60.Sounds terrible.
A.So, if I, if I’d had good air bags. If…replaced them, I would’ve been probably in a lot better condition than I am now. But the fact they didn’t go off, probably saved me…. from gettin’ killed.
Q61Do you remember if you exited the vehicle, or did someone assist you getting out?
A.No, but one, the nurse told me, was that I told someone I had to get out of the vehicle.
Q62.OK.
A.That’s must’ve been the ambulance guy. And it, obviously, I didn’t know I had all these injuries , so if I did try to get out of the vehicle and I’d just fallen on the roadway.
Q63.Um, why do you think the vehicle lost control?
A.Uh, I got no idea…..but I would suspect someone hit me, in the back somewhere. Or, something broke. Uh, that, around or something I dunno. I’ve been sittin’ here thinkin’ about it for 8 days. ….it’s terrible, crossing to the other side of the road, I mean, that’s just something that I , it’s so horrific, I can’t even remember it.
Q64.Do you think speed might’ve been a factor in the incident?
A. Not in my vehicle, but, I wouldn’t, certainly, wouldn’t’ve been driving quickly in that situation. It was around the corner, anyway, that’s a very tight corner.”
And further:
“Q83. Yep. When do you think you lost, um consciousness, it during that whole incident?
A.I got no idea, but, the last thing I remember is that bang. That’s it.
Q84.So it would’ve been you, ‘cause you remember going around the corner and that’s about it.
A.I can’t even remember exactly where I was that I, I can remember the corner……
Q85.Yep.
A.…like, the curve. I don’t know whether I’m recalling, or replacing…
Q86.OK.
A.Um, the last thing I remember is the corner. And I think I was coming out of the corner, when I heard that bang.
Q87.Did you have a, a medical episode or blackout prior to that?
A. Nuh.”

In the file produced by GIO, the property damage insurer of the Claimant’s vehicle a telephone conversation with the claimant is reported where he is alleged to have said inter alia:
“I was driving southwest on St Hillier’s Rd & approaching the lights at Rawson Rd intersection - I have stopped behind traffic – the lights have changed to green & traffic started to move around cnr – I have followed the line of traffic in the far right lane of (3 lanes) when I felt a bang in the back – this is the last thing I remember until I woke & found I was laying on the road I was told by the ambo’s my car had crossed over the median strip hitting 1 or 2 oncoming cars – my son took photo’s of my car & there is a large impact to left rear so I feel that the bang was from being hit in the rear”.

Statement of Senior Constable Brendan Parry

Senior Constable Parry attended the scene of the accident. He recorded the BMW vehicle driven by the claimant was damaged extensively. The front end was destroyed, with the front passenger’s side wheel almost leaning completely over. He described damage on all passenger side panels of the car.

Statement of Senior Constable Gayford

Senior Constable Jon Gayford arrived at the scene of the accident at 7.03pm. He made the following observations:
“There was a grey Ford in lane 1 of 3 facing a southerly direction. A black Holden Rodeo and a red Toyota Corolla had collided and were in the northbound lanes 1 and 2, facing an easterly direction. A silver BMW was facing a southerly direction in a northbound lane, lane 3 of 3 with a beige Toyota Camry facing a northerly direction of the same lane. The black Holden Rodeo had significant damage to the front of the vehicle, as did the Silver BMW”.

Statement of Enrong Tao

Enrong Tao was the driver of the red Toyota Corolla registered No. DWN59V which was involved in the collision. She provided a statement dated 1 August 2019.
Firstly, she was unsure about the time of the accident, suggesting it occurred at 5.00pm. She was in the left lane on her way to Auburn, travelling at normal speed when she was hit by a car next to her car. She described visibility as clear. When asked to describe what happened she said:
“I was driving in my lane, all of a sudden, the car in the next lane came over to me. The back of the car turned and run into mine suddenly. There was a big bang as it hit my car. My car jumped and spun around. I was terrified”.
Ms Enrong stated her car was a write off and the door on the driver’s side could not be opened. She also sustained significant injury in the accident.

Statement of Stephen Porfida

Stephen Porfida was the driver of the black Ford registered No. FPV849 which was involved in the collision. He provided a statement dated 5 August 2019. He stated, inter alia:
“While I was helping out at the accident, Constable Mustafa came over to me. We walked to my car which was parked on the other side of the road and had a conversation.
He said, ‘Stephen, were you the driver of motor vehicle FPV849 being a black Ford F6 when it was involved in a motor vehicle incident at 7.00 pm on Sunday the 14^th October 2018 on Boorea Street nearest cross being Percy street, involved with a silver BMW Bravo Tango Bravo 64Juliet?’
I said, ‘Yes’.
He said, ‘Tell me what happened.’
I said, ‘Ok, I just come off the M4, cruising up I think St Hilliers Road, I’m in the gutter lane, in the left lane. Out of nowhere we made the left hand bend onto Boorea and this guy in the BMW silver one has come from behind me. Basically, the way it looked in my eyes is, he’s put his foot flat around the bend and the car just lost straight out of control. I seen the front drivers wheel pointing to the opposite direction to which he should be taking the bend, before I know it, I’ve had to slam on my brakes that hard because his direction of turning was coming straight into my lane and then its like the cars corrected a little bit and boof, it went straight to the other side of the road into the oncoming traffic’.
He said, ‘Ok, I’m gonna ask you some more question about what happened. You don’t have to say or do anything if you do not want to. Do you understand that?’
I said, ‘Yep’.
He said, ‘Anything you say I’m going record on this device, I can use this recording in court’.
I said ‘Yep’.
He said, ‘When you were at this intersection here of St Hilliers and Boorea, where you stopped at the set of lights?’
I said, ‘No’.
He said, ‘So you were proceeding through the green light?’
I said, ‘The lights were green’.
He said, ‘And the BMW was behind you at that stage?’
I said, ‘Yep’.
He said, ‘And the BMW has come into lane 2 around you and then your saying he’s accelerated, lost control and then slid over the embankment here into the oncoming vehicles heading west bound?’
I said, ‘Exactly’.
He said, ‘Ok, how fast were you going at that stage?’
I said, ‘50, 60, 70, I was going around the bend, I’m in the gutter lane. He came from behind overtook, in the way of, nothing looked…everything looked good until his literally made that move. And its like he put his foot down and….’
He said, ‘Do you believe you were speeding around that corner?’
I said, ‘Me? No way in the world’.
He said, ‘No?’
I said, ‘No way in the world, I don’t even know what the speed limit is here. I said I’m in between the speed of 50 to 70.’
He said, ‘Do you think you were racing with that other car?’
I said, ‘No’.
He said, ‘I just have to clarify a few things that’s all’.
I said, ‘Different story, hotted up car, young bloke. G you up. When you see a 50/60 year old man there’s no way there’s gonna be a race. There’s no way there’s gonna be nothing’.
He said, ‘What makes you think he was accelerating really fast?’
I said, ‘The look of the car. Like I said, I’ve been with cars all my life and you can tell a car just from the way the car was positioned on the road and taking a bend. He was speeding.’
He said, ‘Did that BMW ever hit your car?’
I said, ‘No.’
He said, ‘Has your vehicle received any damage?’
I said, ‘Yes’.
He said, ‘whereabouts?’
I said, ‘Drivers door, drivers guard, bumper bar, front driver’s wheel.’
He said, ‘Let’s just go around and have a look. So this is your vehicle?’
I said, ‘My wife’s.’
He said, ‘Your wife’s vehicle?’
I said, ‘Yep’.
He said, ‘So whereabouts?’
I said, ‘We got his fresh one down here (Driver’s side door). This one straight through here (front right quarter panel), these wheels only got put on a month ago and there’s a fresh scratch there (front right rim), there’s a gouge there (front right bumper and a gouge there (front left bumper).’
He said, ‘How did you get the damage if there was no contact with the beamer?’
I said, ‘All the debris from the accident. It was like an explosion in front of my face and his front bumper bar, reinforcement attached with his oil cooler ended up in my front bumper. So, I don’t know where that come to scraping my car or hitting my car.’”
Stephen Porfida provided a further statement to an investigator at the request of the insurer on 20 February 2019. This statement was signed on 2 June 2022. He stated, inter alia, the following:
“13. …I was driving at just under the speed limit for the area, about 60 or 70 km/h. As I approached the intersection the traffic lights facing me were green in my favour. There is a sweeping left hand turn into Rawson Street and I entered the bend without an issue. At this time there were no vehicles directly in front of me travelling the same way. I was not aware of any other vehicles beside me or close behind me. I was travelling in the kerbside lane of three lanes.
14.    I was just about to leave the left bend and enter Rawson Street, when suddenly a silver coloured BMW sedan appeared just off to my right side. It was travelling in the middle lane, immediately off to my left and was already out of control when I first saw it. It was very close to the front driver’s side of my car, maybe about a metre away. The front of my car was about level with the rear passenger door when I first saw it. It was angled to the driver’s left so that it was facing north-east, at an almost 45 degree angle to my car. It seemed like it was still mainly in its lane but the front passenger side might have been slightly in my lane or on the lane line. The front wheels of the BMW were facing in the opposite direction to the front of the vehicle, in that they were pointing to the driver’s right in a south-east direction. The driver had crossed up the steering and it was definitely out of control.
15.    I applied my ABS brakes straight away and my car slowed immediately. The BMW’s front tyres then appeared to grip the roadway and it began heading to the driver’s right in a south-east direction towards the median strip. This happened very quickly. I would say the BMW seemed to be going a bit quicker than me, maybe 70 or 80 km/h.
16.    The weather at the time was sprinkling rain and the road surface was wet. It had been sprinkling most of the day. The BMW then continued towards the median strip, hit it and mounted it. It continued over the median strip and travelled onto the other side of the roadway (westbound). This happened very quickly. I did not see the reason why the BMW lost control. The roadway was a bit wet and maybe the driver just lost it on the bend going too fast but I am not sure. I did not see any substance on the roadway which might have contributed to the BMW losing control. I did not lose control of my car at any time whilst I approached the scene. There were no other vehicles near us that might have contributed to the BMW losing control.
17.    I then saw the BMW hit a few westbound cars that were on Rawson Street. I believe that the BMW first hit a black coloured Holden Colorado ute which was travelling west in the lane nearest the median strip. I later recorded this ute as being rego number MC2796 driven by a Mr Matthew Cantwell of 25 Braddon Street, Blacktown. I believe this impact pushed the rear of the Colorado ute into impact with a red coloured Toyota Corolla which was travelling west in the centre lane of three. I have recorded this Corolla as being rego number DWN59V, driven by Mrs Enrong Tao of 31021 /57-59 Queen Street, Auburn. I then think that the front of a Toyota Corolla that was following the Colorado ute hit the BMW in the rear passenger side. I have recorded the BMW as being rego number BTB64J driven by Mr Robin Luck of 12 Yamma Street, Sefton. I also believe that the front of a Toyota Camry which was following directly behind the Colorado ute then hit the rear passenger side of the BMW. I recorded this Camry as being rego number VGT700 driven by Mrs Anna Crawford of 4 Coverdale Street, Carlingford.
18.    I pulled over immediately to the left (northern) side of Rawson Street. I got out of my car and saw that the front reinforcement of the BMW had been ripped off the car in the impact with the ute and had flown back over towards my car. It did not hit my car but came to rest a very short distance right in front of my car. I took a photo of it and my car and have provided a copy to Mr Hayes. There was other debris scattered around the scene and based on minor scratches, etc to my car I would say that minor debris struck my car. There were scratches and marks to my bonnet, wheel and a very small dent in the front panel. I took photos of the marks, etc later on and have provided Mr Hayes with a copy of them. There was no major damage to my car at all and definitely nothing that would suggest that the BMW came into direct contact with my car at any time. There was no direct impact between my car and the BMW.”

Statement of Matthew Cantwell

Matthew Cantwell provided a statement to the NSWPF dated 11 September 2019. Mr Cantwell was the owner and driver of the Black Holden Rodeo registered number MC28796 which was involved in the collision.
Mr Cantwell was driving along Boorea Road, Auburn with his wife and daughter. He stated his car was hit front on and subsequently hit a red Toyota Corolla registered number DWN59V. He stated:
“We were travelling in a westerly direction about 50 kmph in lane 2 of 3 in the right hand turning lane. I saw a silver flash out of the corner of my eye, the right hand side. The silver flash hit my car on the right hand side and right front. We spun around. The driver’s side and passenger side airbags went off. We came to a complete stop. We got out of the car and checked our daughter. The silver flash was a BMW. A older man opened the door and rolled out, another guy in a black falcon came over and said that the old man was racing and lost it around the corner”.

Statement of Anna Crawford

Anna Crawford provided a statement to the NSWPF dated 9 August 2019. She was the driver of a Toyota Camry registered number VGT7000 which was involved in the collision.
Whilst sitting in an ambulance following the accident Ms Crawford was interviewed by Constable Mustafa. The following conversation ensured:
“Q.    Anna, were you the driver of motor vehicle VGT700 being a Toyota Camry when it was involved in a motor vehicle incident at 7.00pm on Sunday the 14^th October 2018, on Boorea Street nearest cross being Percy Street with a silver BMW registered BTB64J? Were you the driver?
A.     Yes
Q.     Tell me what happened in your own words.
A.     I was just driving, like coming up to the right hand corner turning lane, to turn on that road there and this car from the other direction, like basically came off the, what’s it the called the middle of it and crashed into my car. Like I didn’t really see what happened on that side and I didn’t see anything else basically.”
Constable Mustafa asked Ms Crawford further questions which were recorded on video. The following replies were elicited:
“Q.    You were driving along Boorea. Can I say you were driving west bound on Boorea?
A.     Is this Boorea?
Q.     That’s Boorea.
A.     Ok.
Q.     And you were going that way which would be westbound.
A.     Yep.
Q.     So, you were going towards St Hilliers, which lane were you in?
A.     I was in the furthest.
Q.     So lane 3?
A.     Yeah, lane 3.
Q.     So that little island, that median was on your right hand side?
A.     Yep.
Q.     Do you remember what vehicles were around you at that stage?
A.     Um, there was one quite a few ahead of me and I can’t remember other vehicles.
Q.     When that vehicle came over from the other side, do you remember how it came over, in what direction. Was it going forward over that island? Or was it going sideways?
A.     It was like slanted, kind of like that. I can’t remember completely what happened.
Q.     Did the BMW hit your car or was it already stationary when you’ve hit it. Can you explain to me?
A.     I must have braked as I was almost stopped and then it just hit me.
Q.     So the BMW was still moving?
A.     Yeah, it was still moving.
Q.     Before it hit your car, did the BMW hit anything else before it hit you. Did you see anything?
A.     I can’t remember. I’m not sure. I think it did. Someone afterwards. I can’t remember if it was someone afterwards. I just came from a different direction. I can’t really remember much. I only remember the car basically hitting me.
Q.     Do you think it might have hit another car before it hit yours?
A.     It did hit another car on the other side of the lane, I’m not sure who it hit though.
Q     Oh, ok, but in your lane going west bound. Did you see the BMW hit another car before it hit yours? Maybe a black ute or anything like that?
A.     I’m not sure if it was before or afterwards, but it hit something else.
Q.     So it might have, it all happened, quickly.
A.     Yeah, really fast.
Q.     Ok, how fast you think you were going before you seen the BMW came over that centre?
A.     I was going probably 70, 65 and started slowing for the corner when I first saw it.
Q.     How far away was it before you started applying your brakes.
A.     It was probably about two lengths of this.
Q.     Two car lengths.
A.     Yeah the ambulance.
Q.     What damage was there to your car?
A.     It was the front, what’s it called, left side of it. The light was broken and dented in. And something to do with oil. It was spilling out.
Q.     So, the front of your car was hit?
A.     Yeah the front.
Q.     And were bout’s did it hit the BMW?
A.     Um, I’m not sure. I didn’t hit, it hit me though. I’m not sure about the BMW. I don’t know.”

Statement of Ricardo Atanacio.

Ricardo Atanacio was driving along St Hilliers Road, Auburn on 14 October 2018 when he witnessed the accident.
He provided a statement to an investigator appointed by the Insurer on 8 April 2019. This statement was signed on 5 January 2021. Adopting the numbering in his statement he stated inter alia, as follows:
“13.   I was travelling east on Rawson Street and was stopped at a red traffic signal at the intersection of St Hilliers Road. I was alone and was the first car in line. I then saw two cars travelling south along St Hilliers Road and taking the sweeping left-hand bend to then travel east in Rawson Street.
14.    There was a black coloured car in the kerbside lane and right next to it in the middle lane of three was a silver-coloured car. When I first saw these two cars, they were just about to leave the sweeping left-hand bend and enter the straight section of Rawson Street. I heard a screeching of tyres at this time and that is what drew my attention to the cars. There were no other vehicles in front or behind these two cars at that time. They were the only vehicles near that part of the intersection.
15.    I think both cars were going at about the same speed when I first saw them, although I had not seen them approach the scene or before I heard the screeching tyres. I can’t say how fast they were both travelling but it seemed like a speed below the speed limit for the area. I did not see either car speeding or get the impression that they were travelling in excess of the speed limit.
16.    When I first saw the silver car it seemed like the driver was still in control and in about the middle of the centre lane. But about one second later the driver just lost control. The front wheels were wiggling and the silver car then just shot across to its right to the other side of Rawson Street.
17.    I was too far away and it happened too quickly for me to be (able) to say if there was any impact between the black car and the silver car. They were close but in their own lanes when I first saw them.
18.    After the silver car lost control it went close to the black car but as I said I can’t say if they actually collided. It looked like the silver car went slightly to its left possibly into the black car’s lane just before it then went to the right towards the median strip but I can’t say if it actually hit the black car or not. When the silver car did this it was basically alongside the black car with their front portions about level with each other. I did not see any major movement from either car or hear any major impact sound to suggest they collided. It seemed liked the silver car’s tyres were just wiggling and that the driver then went across to their right towards the median strip of Rawson Street.
19.    There was no other vehicle anywhere near the silver car apart from the black car when this happened. When the silver car lost control, as I said, it was about level with the black car. There did not look like any major impact with the rear passenger’s side of the silver car to force it across the road. I did not see the driver of the black car do anything wrong, the black car leave its lane or move towards the silver car at any time.
20.    I then saw the silver car mount the median strip and travel onto the westbound lanes of Rawson Street where it collided with about three westbound cars. It happened very quickly and those cars had no chance to avoid the accident. It was a massive impact. I think there was a ute, a small car and one other car involved….”
He provided the following version of events in a statement he provided to police on 26 August 2019.
“Q.    I’m going to ask you some quick questions about what happened tonight. I want you to tell me in your own words what happened.
A.     We were stopped at the traffic light, so I saw the two car running at the same speed, but this BMW for some reason he’s out of control. I thought he was a young man that doing the skidding or something. Then he was probably trying to avoid hitting this car (pointing at black Ford F6) and then he lost control, he go across that island and he hit the ute and the ute hit the red corolla. I don’t know what happened to this one (pointing to Toyota Camry), probably he hit that guy.
Q.     How fast do you think the BMW was going?
A.     Well, I can’t tell. I cannot say. But I think they were running at the same speed.
Q.     Do you think this car (pointing at Black Ford F6) was speeding or racing with that car (pointing at Silver BMW)?
A.     I cannot do that assumption, I did not see what happened at the front. As you can see, this one is the curb, so I don’t know what’s happened on that portion.
Q.     No, no, just here (pointing at Boorea Street). Was this car racing fast as well?
A.     I think there have same speed.
Q.     They were going same speed?
A.     Yeah.
Q.     But this one went around? (pointing at Silver BMW).
A.     I thought this one (pointing at Silver BMW) was skidding and out of control or something. I thought it was a young bloke who driving to be honest. The reason why I stop is because I see everything.

Transcript of evidence

I also viewed the transcript of evidence of proceedings before His Honour Magistrate Reiss at Burwood Local Court on 30 September 2019 when the claimant defended a charge of negligent driving. The claimant was unrepresented. Evidence was given by Constable Mustafa, Matthew Cantwell, Anna Crawford and Enrong Tao. The evidence was consistent with the statements already furnished by each of these witnesses. The witness Stephen Porfida had apparently declined to attend. The proceedings were adjourned part heard but the charge was ultimately withdrawn by the prosecution and dismissed.

Report of Glen Urquhart, civil engineer

Mr Urquhart provided a report at the request of the insurer dated 25 May 2021. He provided a supplementary report dated 2 June 2021 and a further supplementary report dated 4 May 2022.
He noted Boorea Road is a main road of paved construction bordered by concrete kerb and guttering on both sides. On the westbound approach to the intersection with St Hilliers Road there are two dedicated right-turn lanes and one straight through traffic lane moving to three dedicated right-turn lanes and two straight through lanes closer to the intersection. Mr Urquhart noted lane 3 (kerbside) out of the three-lane left-turn-slip road leading to Boorea Street has a radius of curvature about 70 metres whilst lane 2 (centre) has a radius of curvature about 65 metres.
Mr Urquhart noted that Boorea Street has a 70kmph speed limit. It has a divided carriageway, with three traffic lanes in each direction separated by a raised concrete median. He noted the roadway was in good condition.
Mr Urquhart captured the following image from “NearMap” [23 October 2018] depicting the accident scene with the approximate location of the initial collision circled in red.

After viewing photographs of the vehicles involved Mr Urquhart concluded there was distinctive contact damage to the rear quarter panel, including above the height of the bumper bar and to the C-pillar of the BMW. He also noted the damage to the Holden Rodeo included damage to a storage compartment to the rear of the wheel on the off-side corner.
Mr Urquhart viewed a photograph of the rear near-side tyre of the BMW and concluded it showed an absence of tread, was unroadworthy and would have reduced capabilities in wet conditions.
Mr Urquhart felt the claimant offered an explanation for the loss of control. He noted Mr Luck stated “,,,as I came out of the corner, I, I started to accelerate, that’s when I head bang”. He stated had the claimant accelerated too hard for the conditions the rear wheels would have broken traction and the rear of the vehicle would have moved laterally towards the median. He suggested the “bang” described by the claimant would be the rear of the BMW striking the median. Mr Urquhart also concluded that once the rotation was initiated it would have been very difficult for the claimant to recover, despite his reported counter-steering and driving experience.
Mr Urquhart concluded after viewing diagrams of Mr Cantwell, the driver of the Holden Rodeo that the claimant’s vehicle (the BMW) had exited the left-hand curve when the claimant accelerated causing the vehicle to rotate in an anti-clockwise direction before the claimant over-corrected and steered hard to the right. The BMW then commenced to rotate in a clockwise direction until impact.
Mr Urquhart described the first collision as that occurring between the BMW and the Holden Rodeo. He suggests after the initial collision the Holden Rodeo rotated clockwise before colliding with the Toyota Corolla and coming to rest. He concluded the BMW also rotated clockwise whilst continuing to move generally east before becoming involved in a minor collision with the Toyota Camry and coming to rest.
Mr Urquhart concluded that as both the BMW and the Holden Rodeo rotated a ‘secondary slap’, a less significant contact between the two vehicles occurred resulting in contact damage to the rear near-side corner of the BMW and contact damage to the rear off-side corner of the Holden Rodeo.
Mr Urquhart provided the following diagram to show the initial collision between the BMW and the Holden Rodeo and the post-impact clockwise rotation which he concluded resulted in the ‘secondary slap’. He concluded the damage to the rear near-side corner of the BMW and the damage to the rear offside corner of the Holden Rodeo was consistent with the occurrence of a ‘secondary slap’ as described.
Mr Urquhart also relies upon a number of assumptions to assess the likely speed at impact. Having regard to those assumptions and noting Mr Cantwell, the driver of the Holden Rodeo stated he was travelling at a speed of about 50 kmph Mr Urquhart has concluded the BMW was travelling at a speed greater than 57 kmph at impact.
In his supplementary report dated 2 June 2021 Mr Urquhart concluded that having regard to two diagrams prepared by Mr Cantwell that the more likely pre-impact motion of the BMW was a clockwise rotation prior to impact. He concluded the BMW exited the left-hand curve when the claimant accelerated. The BMW has commenced to rotate in an anti-clockwise direction before the claimant over-corrected and steered hard to the right. The BMW then rotated in a clockwise direction until impact.
In summary Mr Urquhart concluded the claimant lost control of the BMW when he exited the corner, the BMW initially rotated anti-clockwise before changing rotational direction to clockwise due to a hard steering input. The BWM crossed the median and into the westbound lanes of Boorea Street where it initially collided with the Holden Rodeo driven by Mr Cantwell. He concluded at impact the BMW was travelling at a speed greater than 57kmph and following the initial impact it has spun in a clockwise direction, resulting in the ‘secondary slap’ with the Holden Rodeo before continuing east and colliding with the Camry driven by Ms Crawford. As a result of the initial impact the Holden Rodeo rotated clockwise, crossing into lane 1 and colliding with the Corolla driven by Ms Tao. Mr Porfida’s east bound Ford sustained minor damage caused by flying debris.
Mr Urquhart felt the claimant’s loss of control was likely caused by a combination of factors, namely, the wet road conditions, vehicle speed, excessive acceleration and unroadworthy tyres.

Report of Grant Johnston, civil engineer.

The claimant seeks to rely upon a report of Grant Johnston, civil engineer dated 21 March 2022. I am satisfied Mr Johnston has the appropriate expertise to provide a biomechanical opinion.
Mr Johnston described the tread on the rear near-side of the BMW as “…very low in tread and smooth on the outer edge…” but concluded he could not say if the tyre was defective without measurement of the tread depth.
At page 45 of his report a photograph shows damage to the rear left side of the BMW sedan. Mr Johnston suggested the significant dent laterally across the “C” pillar and the lines of damage across the mudguard panel suggests damage from a higher commercial type of truck, noting there is no damage to the side of the rear bumper.
Mr Johnston reviewed both the impact position of the vehicles involved in the accident and their approximate rest positions.
He concluded the BMW sedan would appear to have been sliding sideways with its front right leading as it crossed the median strip. He felt this was counter intuitive to the direction the vehicle should have been moving if the driver lost control whilst negotiating the left-hand bend when travelling from St Hilliers Road onto Boorea Street. He stated when vehicles negotiate a left-hand bend, and the tyres lose traction the rear of the vehicle is likely to move out to the right and the vehicle will start to rotate in an anti-clockwise direction. He stated whilst it would not be unusual for a vehicle to move off the roadway to its right, which in this case, would have been towards the median strip, the right rear was more likely to cross the median first and it would be facing in a north easterly direction so that when it moved onto the westbound carriageway the right side of the BMW was more likely to be the part confronted by the front of the Holden Rodeo. However, in this case it was the front left of the BMW which was confronted by the front of the Holden Rodeo. Mr Johnston concluded this indicated it was something else, other than a normal loss of control which caused the alignment of the BMW to change direction before it moved towards the median.
Mr Johnston noted the significant damage to the left rear side of the BMW. He stated based on the post impact movement of the Holden Rodeo, which appeared to have been in a clockwise direction, there was no secondary contact with the BMW and the collision between the BMW and the Toyota Camry sedan did not involve the left rear side of the BMW. He, therefore, concluded damage to the left rear side of the BMW was likely to have occurred when that vehicle was travelling east from St Hillier’s Road onto Boorea Street. However, as he noted no one seems to have seen that collision.
Mr Johnston did not accept the opinion of Mr Urquhart that the damage to the rear of the BMW may have been caused due to the rotation of the BMW after the impact with the Holden Rodeo, causing a secondary contact between the vehicles. He was of the view the likely alignment of the BMW at impact and its position post impact suggested it did not rotate far enough to have engaged the right side of the Holden Rodeo.
Mr Johnston stated if the BMW did receive a significant impact at its left rear side, it is likely to have caused the vehicle to rotate in an anti-clockwise direction from its position at that time. He noted it is unknown how far the BMW sedan would have rotated after that impact, the alignment at the time of the collision with the Holden Rodeo indicates the claimant would have had to apply some counter steering to direct the vehicle in the opposite direction. Mr Johnston notes the claimant was an advanced driver trainer and would know how to correct a vehicle in this type of situation. However, whilst he suggests the evidence of Mr Porfida supports the suggestion that counter steering was applied there is no direct evidence from the claimant who, unfortunately, other than recalling a bang has no other recollection of the accident.
Mr Johnston rightly states:
“Without a specific witness to the collision which caused the damage to the left rear of the BMW sedan, conclusions as to what really happened can only be speculated. Based on the damage to the left rear of the BMW sedan it cannot be discounted that another collision occurred with an unknown vehicle whilst the vehicle was exiting the left-hand bend from St Hillier’s Road onto Boorea Street”.
Lastly Mr Johnston does not accept Mr Urquhart’s estimate as to the speed of the BMW because in his view there are too many unknown variables to determine an accurate speed for the vehicle at impact. He suggests that the BMW would have lost speed whilst sliding across the carriageway and across the median strip and in the absence of knowledge of how far the vehicle travelled or how much it rotated whilst sliding it is impossible to be accurate.

Further supplementary report of Glen Urquhart dated 4 May 2022

In a supplementary report dated 4 May 2022 Mr Urquhart provided comment on the report of Mr Johnston dated 21 March 2022.
Firstly, Mr Urquhart noted that he and Dr Johnston agreed that the damage to the rear near-side of the BMW was significant and would not have been caused by a slight bump. Mr Urquhart argues that such damage was not caused by contact with a higher commercial type truck, as suggested by Mr Johnston, where no person, including the claimant reported seeing a truck in the vicinity of the collision. He reiterated his opinion that due to the post impact-rotation of the BMW, the rear near-side of the BMW came into contact with the rear tray of the Holden Rodeo in what he described as the ‘secondary slap’.
Mr Urquhart noted that the impact location was about 65 metres east of the exit to the curve. He agreed with Mr Johnston that typically when a loss of traction occurs on a left-hand curve it would be expected to be oriented with the rear off-side crossing the median first. He also agreed with Mr Johnston that a loss of traction occurring on a left-hand curve would be expected to have occurred much closer to the exit to the curve and not a considerable distance away. Mr Urquhart suggested this could be explained by a right-hand steering over-correction by the claimant resulting in a change of rotational direction. He stated such steering response would be expected of an experienced driver such as the claimant and provides an explanation for the unexpected vehicle orientation, and the distanced travelled east prior to crossing the median. He noted that Mr Johnston also concluded the claimant applied counter steering to change the rotational direction of the BMW.
Whilst Mr Urquhart noted Mr Johnston did not agree with his analysis relating to the likely speed of the BMW, he accepted there were a number of variables involved in that analysis, and that during the pre-impact rotation of the BMW it will have lost speed. However, he did not resile from his opinion that the claimant was likely travelling at a speed greater than 57kmph at impact, and faster at the time of loss of control.

SUBMISSIONS

Claimant’s submissions

The claimant provided submissions dated 28 October 2020. The claimant submits it is conceded that he lost control of his vehicle causing it to mount the median strip and collide with vehicles on the other side of the road. However, it is submitted the claimant has consistently said that the cause of him losing control was an impact from behind by another vehicle.
The claimant submits that in determining whether the claimant was wholly or mostly at fault the question to be determined is “was there another vehicle involved which caused this accident?”.
The claimant submits I should make a finding there was another vehicle involved on the basis of the following:
“a.     Mr Luck has been consistent in stating there was a ‘big bang’ to his car on his side of the road before he lost control of his vehicle;
b.      There is no explanation for the damage done to the rear of the Claimant’s car other than the damage was done by a vehicle impacting his car. As none of the cars on the other side of the road collided with the back of his car, that damage can only have been caused by a vehicle on Mr Luck’s side of the road;
c.      There is no other plausible explanation for the Claimant losing control and in particular noting the Claimant’s driving experience including his advanced driving skills;
d.      Mr Luck’s version of where he was on the roadway and how he was driving is more believable than Mr Porfida’s noting that Mr Porfida’s evidence of Mr Luck overtaking him is not supported by Mr Atanacio’s evidence;
e.     Of the two factual scenarios presented to the Assessor (Mr Luck’s vehicle was hit from behind causing him to lose control as opposed to him speeding around a corner in traffic), Mr Luck’s is more likely.”
The claimant submits that if I was to accept the presence of another vehicle and primary negligence on the part of that vehicle, then I could not find the claimant “wholly at fault” under ss 3.11 and 3.28 of the MAI Act. Further, the claimant submits that I was to find there was another vehicle that collided with the claimant’s vehicle causing him to lose control of his own vehicle then arguably the claimant has not contributed to the cause of the accident at all.

Insurer’s submissions

The insurer submits that unroadworthy tyres, vehicle speed, excessive acceleration and wet road conditions are the reason why the claimant lost control when navigating a bend in the road without making contact with any other vehicles.
The insurer submits that there is no evidence in the witness statements or from any of the other drivers involved in the accident to suggest an initial collision occurred between the BMW and an unidentified vehicle.
The insurer relies upon the opinion of Mr Urquhart to submit that the damage to the rear of the BMW was not consistent with a mild ‘bump’ and was most likely caused by “a secondary slap” whereby the rear-passenger side of the BMW rotated clockwise after the initial collision with the Holden Rodeo further colliding with the rear driver’s side of that vehicle. The insurer notes a “secondary slap” is consistent with the damage profiles of the rear passenger side of the BMW and the rear driver’s side of the Holden Rodeo.
Mr Urquhart agreed with Mr Johnstons that the claimant appears to have applied counter steering in an attempt to regain control of the vehicle and that this likely provides an explanation as to the unexpected vehicle orientation at the time of the first collision with the Holden Rodeo.
The insurer otherwise relies upon the conclusions of Mr Urquhart set out above.

WAS THE CLAIMANT WHOLLY OR MOSTLY AT FAULT

Pursuant to section 3.1 of the MAI Act the claimant is entitled to statutory benefits if he has an injury that results from a motor accident. Section 3.1(2) provides that statutory benefits are payable, accept as otherwise provided by Part 3, irrespective of fault.
The insurer does not dispute that the claimant was involved in a motor vehicle accident and nor do they dispute that he suffered injury.
However, the insurer relies upon sections 3.11 and 3.28 of the MAI Act to assert the claimant is not entitled to statutory benefits past 26 weeks on the basis that the motor accident was caused wholly or mostly by the fault of the claimant.
In a Miscellaneous Claims Assessment Certificate in a matter of G P v GIO, 21 March 2019 Claims Assessor Cassidy (as she then was) said the following at [35]:
“Part 3 of the Act provides a right or entitlement to statutory benefits to someone injured in a motor accident in NSW. In my view, once it is agreed, or the Claimant establishes that he was injured in a motor accident in this state, then, as the Insurer is seeking to take that right and entitlement away from Mr P, the Insurer bears the burden of satisfying me that Mr P should not receive statutory benefits beyond the first 26 weeks”.
I agree and find that the onus of establishing the claimant was wholly or mostly at fault falls on the insurer.
It is agreed that it was raining lightly on 14 October 2018 and the road was wet. There is no dispute the turn from St Hilliers Road into Boorea Street is a sweeping left-hand turn. Boorea Street at the site of the accident is a three-lane road in each direction divided by a concrete median strip.
Both Mr Johnston and Mr Urquhart agreed the rear near-side tyre on the BMW was very low in tread and smooth on the outer edge. Whether or not it could be described as defective it is not difficult to conclude that it would have resulted in reduced traction on the road in wet conditions.
The parties agree that the Ford driven by Mr Porfida did not come into contact with the BMW and that any damage to the Ford was caused by debris from the collision. This is consistent with the evidence of Mr Porfida.
On 14 October 2018 the claimant drove his BMW sedan along St Hilliers Road, Auburn. He remembers coming up to the intersection with Boorea Street driving at about 20 kmph in the right-hand lane. He says as he came up to the lights at the intersection other cars in front of him started to move off, so he was “kind of rolling”. He turned into Boorea Street accelerating out of the corner. His next recollection is hearing a ‘bang’ before waking up in the ward.
When questioned by Constable Mustafa the claimant said “Like, its just I heard that bang and then it’s like, absolute nothing. I can’t remember anything”. When asked why his vehicle lost control the claimant said “U, I got no idea… but I would suspect someone hit me, in the back somewhere. Or, something broke.”
Whilst the claimant is reported to have informed GIO, the property damage insurer that he ‘felt a bang in the back’, this is not otherwise consistent with the claimant’s evidence. I am satisfied he heard a bang, but I am not satisfied he ‘felt a bang in the back’.

He was asked at what stage he started to accelerate around the corner. He said he couldn’t say but he supposed it was as he came out of the corner. Clearly, he cannot recall and nor could he recall the speed of his BMW on Boorea Street, other than to say it “might’ve been 50, maybe”.
The claimant was asked if he recalled the black Ford vehicle but other than to say he thought it was on his left his only other recollection was of having seen it at the Parramatta Road intersection.
Mr Porfida drove his black Ford through a green light at the intersection with St Hilliers Road and Boorea Street with the BMW behind him. He said there were no other vehicles directly in front of him, beside him or close behind him travelling in the same direction.
Mr Porfida states as he was about to leave the left-hand bend and enter Boorea Street the BMW appeared on his right side, level with his rear passenger side, travelling in the middle lane. He thought the BMW was already out of control. He described the BMW as angled to the left, with the front passenger side possibly intruding into his lane or on the lane line. Mr Porfida observed the front wheels of the BMW facing in the opposite direction to the front of the vehicle. Mr Porfida applied his brakes and his car slowed. He observed the front tyres of the BMW appear to grip the roadway and the BMW head to the right in a south-east direction towards the median strip. Mr Porfida thought the BMW was travelling quicker than he was, maybe 70 or 80 kmph. He observed the BMW mount the median strip and travel to the other side of the roadway first hitting the Holden Rodeo.
Significantly, Mr Porfida did not see any substance on the roadway which may have contributed to the claimant losing control of the BMW and not did he see any other vehicles nearby that might have contributed to the BMW losing control.
Other than observing a silver flash out of the corner of his eye, Mr Cantwell, the driver of the Holden Rodeo did not see how the accident occurred. Likewise, Ms Tao, the driver of the Toyota Corolla was unable to describe how the accident in which she was involved occurred.
Similarly, Ms Crawford, the driver of the Toyota Camry did not see how the accident occurred, other than to say the BMW was slanted when it came over the median strip. She was aware the BMW hit another car but was unsure whether it was before or after the collision with her vehicle.
Mr Atanacio is an independent witness who was stopped, first in line, at the traffic lights at the intersection of St Hillier’s Road and Boorea Street. Whilst some distance away he had an unimpeded view of the accident scene.
The first statement provided by Mr Atanacio was provided to the investigator on 8 April 2019 although it was not signed until 5 January 2021. In that statement Mr Atanacio says his attention was drawn by a screeching of brakes and he saw a black car in the kerbside lane and a silver car in the middle lane of three about to leave the sweeping left-hand bend from St Hilliers Road and enter the straight section of Boorea Street. He said there were no other vehicles in front or behind these two cars at that time. In fact, he stated they were the only vehicles near that part of the intersection.
Mr Atanacio was not able to estimate the speed of the two vehicles, but he did not believe that either vehicle was travelling in excess of the speed limit. He said when he first saw the silver car it seemed under control, but he then observed the driver lose control. He stated, “The front wheels were wiggling and the silver car then just shot across to its right to the other side of Rawson Street”. Mr Atanacio observed the silver car move close to the black car, stating “It looked like the silver car went slightly to its left possibly into the black car’s lane just before it then went to the right towards the median strip”. He was unable to say if the silver car hit the black car, but he did not see any major movement or sound from either car to suggest a collision.
In the statement he provided to police on 26 August 2019 Mr Atanacio said he saw two cars running at the same speed, but he observed the BMW to be skidding and out of control. He suggested the claimant driving the BMW lost control when he tried to avoid hitting the black Ford causing the BMW to travel across the island before hitting the ute (the Holden Rodeo).
Other than the recollection of hearing a bang I am satisfied the claimant has no other recollection of what occurred. The suggestion that another vehicle collided with the BMW causing the damage to the rear passenger side is mere speculation based on his recollection of a bang, the lack of any readily apparent reason for that damage and his confidence in his driving ability.
Having regard to the evidence of Mr Porfida and Mr Atanacio I am satisfied there was no other unidentified vehicle which collided with the BMW driven by the claimant causing him to lose control of his vehicle.
In the absence of an unidentified vehicle, I am required to determine whether the claimant was wholly or mostly at fault for the accident.
I note there is no suggestion of contributory negligence by any other vehicle involved in the collision including the Ford driven by Mr Porfida.
Having regard to the evidence of Mr Porfida and Mr Atanacio I find the opinion of Mr Urquhart to be more persuasive. Whilst Mr Johnston suggests one can only speculate as to what caused the damage to the left rear of the BMW the evidence is clear that the damage was not caused by an unidentified vehicle. Therefore, accepting there was no contact between the BMW and any other vehicle before the BMW veered over the median strip to the other side of the road the only possible conclusion is that the damage was caused as a result of the series of collisions which commenced with the collision between the BMW and the Holden Rodeo.
Mr Urquhart and Mr Johnston agree that the claimant applied counter steering to change the rotational direction of the BMW. They also agree that the damage to the rear near-side of the BMW was significant and would not have been caused by a slight bump.
Mr Urquhart agreed with Mr Johnston that the claimant appears to have applied counter steering in an attempt to regain control of the vehicle and that this likely provides an explanation as to the unexpected vehicle orientation at the time of the first collision with the Holden Rodeo. I find this is a likely explanation for the orientation of the BMW as it passed over the median strip and I think it is likely that the bump the claimant heard was the rear of the BMW hitting the median strip.
I accept the opinion of Mr Urquhart that the damage to the rear of the BMW was most likely caused by “a secondary slap” whereby the rear-passenger side of the BMW rotated clockwise after the initial collision with the Holden Rodeo further colliding with the rear driver’s side of that vehicle. I note a “secondary slap” is consistent with the damage profiles of the rear passenger side of the BMW and the rear driver’s side of the Holden Rodeo.
I note that Mr Johnston conceded that the tyre tread on the rear near-side of the BMW was “…very low in tread and smooth on the outer edge…”. Mr Urquhart concluded that the absence of tread meant that the tyre was not roadworthy and would have lost traction when the claimant accelerated on the wet road causing the BMW to move laterally towards the median.
Notwithstanding his confidence in his driving ability and what he described as 40 years of advanced driver training the claimant has a less than impressive traffic record including licence suspension due to demerit points and a disqualification imposed by Sydney District Court on 6 July 2017 for exceeding the speed limit by more than 30kmph but not more than 45kmph. He has also recorded speeding offences since 2017 on 8 January 2017, 14 October 2017, 4 December 2017, and on 19 January 2018.
I agree with Mr Johnston that there are too many variables to rely on the speed estimates of Mr Urquhart. However, to establish he was wholly or mostly at fault it is not necessary to establish that the claimant was exceeding the speed limit, simply that he was driving too fast for the wet road conditions.
I am satisfied the claimant lost control of the BMW, having accelerated too fast after coming out of the sweeping left-hand bend from St Hilliers Road, having regard to the wet road conditions that day and the lack of tread on the rear near-side tyre of the BMW.

CONCLUSION

For the purposes of ss 3.11 and 3.28 of the MAI Act I find that the motor accident was caused wholly or mostly by the fault of the claimant.

COSTS

In submissions dated 28 October 2020 the claimant reserved the right to make further submissions as to costs and indicated an application would be made for an exceptional costs award pursuant to s 8.10 of the MAI Act on the basis of the unusual complexity in this matter.
On 10 June 2022 I issued draft Reasons for Decision and made directions to each party to provide submissions as to costs. On 16 June 2022 I varied those directions noting the parties sought an opportunity to reach agreement on costs before taking steps to file submissions in accordance with my directions.
On 4 July 2022 I was informed the parties had reached agreement as to costs.

Susan McTegg

Member (Motor Accident Division)

Personal Injury Commission

[2022] NSWPIC 364

4 July 2022