Maggar v NRMA
[2022] NSWPIC 59
•24 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Maggar v NRMA [2022] NSWPIC 59 |
| CLAIMANT: | Wagdi Maggar |
| INSURER: | NRMA |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 24 January 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims assessment; section 3.28 and schedule 2, clause (3)(e) of the Motor Accident Injuries Act 2017; wholly or mostly at fault; rider of scooter; single vehicle accident; scooter slid on gravel/sand on rough, uneven patch of roadway at exit of roundabout; claimant dislodged from scooter and hit bitumen with force; Held - claimant not wholly or mostly at fault; not riding recklessly or inattentively when negotiating the roundabout; road conditions not immediately visible; claimant’s legal costs assessed at the maximum regulated fee; no exceptional circumstances warranting exceptional costs order. |
DETERMINATIONS MADE: | 1. For the purposes of section 3.28 the motor accident was not caused wholly or mostly by the fault of the claimant. 2. The effective date of this decision is 23 February 2021. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,881 inclusive of GST. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
INTRODUCTION
These proceedings concern a Miscellaneous Claim assessment under Schedule 2, clause (3)(e) of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant, Wagdi Maggar, seeks a review of the insurer’s decision made under s 3.28 of the MAI Act to the effect that the claimant was wholly or mostly at fault for the motor accident.
BACKGROUND
The claimant is a 70-year-old man who suffered significant injuries in a motor accident on 4 August 2020.
At about 12.20pm on that day, the claimant was riding his scooter in a southerly direction along Loch Street, Campsie, approaching a roundabout at the intersection with Evaline Street.
The claimant proceeded to make a right-hand turn in a westerly direction into Evaline Street at the roundabout. As he accelerated out of the roundabout, his scooter slid to the left side causing him to fall onto the roadway.
The claimant’s injuries included fractures of the left ankle, right wrist, right index finger and the left tibial plateau.
On 11 August 2020, the claimant made an application for payment of statutory benefits. Specifically, he sought payment of benefits for treatment and care.
On 7 September 2020, the insurer accepted liability for payment of the benefits for the first 26 weeks. On 11 November 2020, the insurer notified the claimant that it would continue payment of benefits after 26 weeks while its investigations into the circumstances of the motor accident continued.
On 23 February 2021, the insurer notified the claimant that it now denied liability for payment of any statutory benefits beyond 26 weeks on the basis that he was wholly at fault for the motor accident.
On 23 March 2021, the claimant sought an internal review of the insurer’s decision. On 9 April 2021, the insurer issued a determination affirming its original decision.
On 7 May 2021, the claimant commenced these proceedings in the Personal Injury Commission (the Commission) to resolve the dispute.
The proceedings are now before me for determination.
DETERMINATION ON THE PAPERS
At a teleconference conducted on 28 October 2021, the parties agreed that I could proceed to determine the proceedings based on the documents before me.
I am satisfied that there is sufficient information before me to determine the dispute without holding a formal hearing.
In making my determination, I considered the following documents:
(a) the NSW Ambulance Electronic Medical Record dated 4 August 2020;
(b) the Application for Personal Injury Benefits dated 11 August 2020 and the attached certificate of fitness for work, dated 10 August 2020;
(c) the Police Report dated 25 August 2020;
(d) the Liability Notice for Benefits up to 26 weeks dated 7 September 2020;
(e) the claimant’s email response dated 2 October 2020 to a series of questions by the insurer’s investigator, MJM Corporate Services;
(f) A coloured photograph of the site of the accident taken on 3 October 2020 at 1.28pm;
(g) the factual investigation report of MJM Corporate Services, dated 7 October 2020 which included a transcript of interview between Steven Rostankov and Constable Jake Zwan on 22 September 2020, a series of coloured photographs of site of the accident taken on 7 October 2020 and a site diagram (the MJM report);
(h) the Liability Notice for Benefits after 26 weeks dated 11 November 2020;
(i) the Liability Notice for Benefits after 26 weeks dated 23 February 2021;
(j) the claimant’s application for internal review dated 23 March 2021;
(k) the insurer’s internal review certificate of determination and reasons dated 9 April 2021;
(l) the claimant’s submissions to the Commission dated 7 May 2021;
(m) the insurer’s submissions in reply to the Commission dated 7 June 2021;
(n) the claimant’s statement dated 10 October 2021, and
(o) the clinical notes of Royal Prince Alfred Hospital.
EVIDENCE
The following facts are uncontroversial:
(a) the speed limit was 50 kmph;
(b) the weather was fine, and the road surface was dry;
(c) the claimant has not had any alcohol or drugs in the 24 hours prior to the accident;
(d) the claimant was wearing a helmet;
(e) there was no other vehicle involved in the accident, and
(f) there was one lane of traffic in each direction at the roundabout.
The claimant’s evidence
The claimant has described the circumstances of the motor accident on several occasions.
In his application for statutory benefits dated 11 August 2020, the claimant stated:
“I was riding my scooter/vespa when I fell off due to loose sand/gravel on road (single vehicle accident) causing it to be uneven.”
The claimant was interviewed by the NSW Police Force the next day while in hospital. In a recorded interview with the insurer’s investigator, Mr Steven Rostankov of MJM Corporate Risk Services on 22 September 2020, Constable Jake Zwan read a statement made by the claimant from his notebook as follows:
“I was riding my scooter in a south direction along Loch Street Campsie. I was driving in lane one of one, about 40 kilometres. I pulled over to the left as a police car went past me, as they had their lights and sirens on, then they past [sic] me. After they past [sic] me, I pulled back onto Loch Street and continued south at 40 kilometres. As I reached a roundabout on Loch Street cross of Evaline Street, I slowed down to about 30 kilometres an hour and turned right into Evaline Street. I accelerated out of the roundabout, hitting some sand which was on the road, which caused my scooter to slide out, causing the left side of my body to collided with the bitumen with force…I fractured my right-hand wrist and my left ankle.”
In an email dated 2 October 2020, in response to a series of questions asked by the insurer’s investigator, MJM Corporate Services about the circumstances of the accident, the claimant said that although the road was sealed, he observed after the accident that the “tar was possibly cracked or dented” and “from memory, the road was also uneven at that particular spot”.
The claimant provided a signed statement dated 10 October 2021 to the Commission. The following evidence was significant:
“ …
5. I was riding my scooter in a southbound direction on Loch Street, Campsie when I heard a police siren behind me. I pulled over on the left side of Loch Street, just before the intersection with Evaline street, to allow the emergency vehicle to pass.
6. Once the police vehicle had passed, I continued along Loch Street and turned right at the roundabout onto Evaline Street, when all of a sudden, my scooter lost balance, causing me to be ejected from it.
7. After I fell, I noticed there was an uneven patch of the road with loose sand and gravel at the spot where I fell of my scooter.
8. I believe the condition of the roadway is what caused my scooter to lose balance, resulting in my accident.
9. When the ambulance came, I was in a lot of pain I do not remember exactly what I said to them. I believe I told everyone I spoke to that it was the condition of the road that caused the accident.
10. The police came to visit me in the early hours of the morning at Royal Prince Alfred Hospital and I gave them as much information as I could.
…”
The claimant has provided the Commission with a coloured photograph of the location of the accident that depicts the condition of the roadway. The photograph was taken digitally by the claimant’s legal representative on 3 October 2020 at 1.28pm.
The Ambulance Report
The Ambulance Service of NSW arrived at the scene of the accident at 12.26 pm. The Ambulance Electronic medical record dated 4 August 2020, provides the following case description:
“CT 69 YOM from public place, CC fall off powered scooter at approx. 1220pm, nil witnesses OS. Pt states that he was riding at approx. 30km/h on a straight road when he was overtaken by a car and did not see the pothole/patch of uneven road. Pt states that he hit something that spun the bike sideways, causing him to fall off… Pt alert, oriented, breathing normally…Transported to RPA stable en-route.”
The NSW Police Force
Constable Zwan of the NSW Police Force attended the Royal Prince Alfred Hospital the day after the accident and interviewed the claimant. After the interview, Constable Zwan inspected the scene of the accident. He did not take any photographs.
Constable Zwan recorded the “Crash Summary Details” in the NSW Police Report dated 25 August 2020 as follows:
“Veh 1 being a 125cc scooter …westbound along Evaline Street, Campsie. Veh1 has proceeded in lane 1 of 1 as Driv1 has continued through the roundabout on Loch Street at a speed of 30km/h. As Driv1 has exited the roundabout, Driv 1 alleges he has hit some sand on the road causing his Veh1 to slide causing him to be ejected. Driv1 has hit the bitumen at force causing injuries.”
In his interview with Mr Rostankov on 22 September 2020, Constable Jake Zwan said the following about his observations of the roadway at the roundabout (on 5 August 2020):
“So, from what he said, he’s – the roundabout on Evaline Street cross of Loch Street, so he’s turned right onto Evaline Street from Loch Street and accelerated out, so I dare say probably within 15 metres of the roundabout.
…
There was, like, the typical, just gravel, like, bit of - tiny bit of loose gravel, but nothing of …major relevance, and no sand that I could see.”
THE INSURER’S SUBMISSIONS
The insurer’s submissions may be summarised as follows:
(a) the Police inspected the roadway the day after the motor accident and did not notice anything of major relevance (such as sand) that could have caused the scooter to slide out. They did however notice a tiny bit of loose gravel which was typical of roadways. They did not take any action against the claimant as they believed he had provided a plausible cause for the motor accident;
(b) according to Vairy v Wyong Shire Council [2005] HCA 62, 223 CLR 422, the duty of the driver of a motor vehicle to users of the roadway is to take reasonable care for their safety having regard to all the circumstances of the case;
(c) the reasonable care that a driver must exercise when driving a vehicle on the road requires, as the majority observed in Manley v Alexander [2005] HCA 79 at [12]:
“…that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”
(d) roadways are not pristine environments and may contain impediments that create dangerous situations for motorways such as uneven surfaces, potholes and loose gravel. As such, motorists are required to pay attention to observable dangers in their vicinity as well as to the road ahead so that they can react in time to avoid harm to themselves and others in the vicinity;
(e) a reasonably prudent driver in the position of the claimant ought to have paid attention to the road ahead, safely controlled his vehicle and taken evasive action to avoid the emerging sand and/or gravel and the accident that ensued, and
(f) for the reasons outlined, and based on the available evidence, the accident was caused wholly by the fault of the claimant.
THE CLAIMANT’S SUBMISSIONS
The claimant submissions may be summarised as follows:
(a) the insurer’s reasoning sets the bar too high with respect to the claimant's duties and overlooks the fact that the Council has obligations with respect to maintaining the road. It also overlooks the obligations of other road users (for example, whomever was responsible for sand/gravel to be on the roadway);
(b) it is uncontroversial that single track vehicles, such as bicycles and motorcycles are particularly vulnerable to defects or loose surfaces on the roadway. The suggestion that accidents arising in this context are automatically the fault of the motorist is contrary to the general law (see for example general remarks of Master Harrison in Suvaal v The Nominal Defendant & Anor [2000] NSWSC 1043 at [167];
(c) although the insurer relies upon Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 to advance the proposition that "the duty of the driver of a motor vehicle to users of the roadway is to take reasonable care for their safety having regard to all the circumstances of the case", Vairy did not concern a motor accident, rather a swimmer who dived into shallow waters, rendering him quadriplegic. A significant issue in that case was whether the Council had an obligation to erect signage in Norah Head Reserve;
(d) the assertion that a road user is required to take reasonable steps for their own safety is uncontroversial. The question is of course what is reasonable in the circumstances. There is no suggestion that the claimant acted negligently or recklessly in any way;
(e) in the present matter, there is no dispute as to how the accident happened -the claimant suffered injury when he was dislodged from his scooter due to a pothole and/or sand or gravel on the roadway. The dispute appears to lie in whether the claimant was wholly at fault for what occurred (the insurer has not alleged that the claimant was "mostly at fault"), and
(f) the claimant submits that the insurer has fallen significantly short of its onus to establish that the claimant was at fault for the accident. Pointing to the fact that the accident was a single vehicle accident is not enough to discharge its duty. The claimant was riding on the roadway, and it was reasonable he was entitled to assume that the condition of the road was such that he could safely ride his motorcycle.
CONSIDERATION
The relevant legislation
There is no dispute between the parties that the claimant was injured in a motor accident as defined in s 1.4(1) of the MAI Act, involving the use or operation of a motor vehicle that caused and resulted in his injury.
There is no dispute between the parties that the claimant has suffered non-minor injuries for the purposes of s 3.28 of the MAI Act.
The only issue that arises for determination from the insurer’s decision under review is whether the claimant was at fault in the motor accident.
Section 3.28 (1)(a) of the MAI Act provides an injured person is not entitled to statutory benefits for treatment and care expenses incurred more than 26 weeks after the motor accident if the accident was caused wholly or mostly by the fault of the injured person.
Section 3.28 (2) provides that 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 was greater than 61%.
The insurer’s decision was made pursuant to s 3.28 of the MAI Act to the effect that the claimant was wholly at fault in the motor accident.
Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
In s 5 of the Civil Liability Act 2002, negligence is defined as meaning failure to exercise reasonable care and skill.
Factual findings
The claimant has described the circumstances of the motor accident on several occasions. I find that the claimant has been consistent in his evidence.
I find, on the balance of probabilities, that the claimant was dislodged from his scooter as he negotiated the right- hand turn in the roundabout because of a rough, uneven patch on the roadway containing loose gravel and/or sand.
The claimant’s evidence is consistent with the following evidence:
(a) the photograph taken two months after the accident on 3 October 2020, depicts a rough and uneven patch of roadway at the western exit of the roundabout in Evaline Street facing west;
(b) the photograph provided on Page 9 of the MJM report which was taken a few days earlier on 24 September 2020 also depicts the rough and uneven patch in the same location but taken at a distance of about 10 metres away from the western exit of the roundabout;
(c) Constable Zwan inspected the site of the accident the next day on 5 August 2020, late at night or in the early hours of the morning and he noticed there was a tiny bit of gravel at the same exit point of the roundabout, and
(d) the ambulance records reveal that at the scene of the accident, the claimant reported that he did not see the pothole/patch of uneven road and he hit something that spun his scooter sideways.
Discussion
There is no evidence from the insurer to the contrary or indeed any submissions that the accident did not occur as described by the claimant.
Rather, the insurer’s contention is that the claimant was negligent and therefore wholly at fault because he:
(a) failed to safely control his scooter in circumstances where the roadway had an uneven surface and the presence of loose sand and/or gravel;
(b) failed to take action to avoid the sand and/or gravel on the road ahead;
(c) failed to keep a proper lookout and pay attention to the changing and/or prevailing road conditions whilst entering and exiting the roundabout, and
(d) failed to appreciate the emerging circumstances in time to take action to attempt to avoid the loose sand and/or gravel by either steering away / manoeuvring the scooter safely or bringing his scooter to a stop.
I do not accept the insurer’s contention for the following reasons:
(a) the claimant was not travelling straight ahead. He was making a right-hand turn. In those circumstances, I consider that he would not have had a reasonable chance to see what lies around the corner. Furthermore, the subject corner and the rough patch of the roadway and gravel and/or sand was behind the centre of roundabout;
(b) I consider that when approaching a roundabout as a prudent rider, the claimant’s attention would be directed towards observing vehicles in the roundabout, looking to his right and to his left before commencing the negotiation of his right-hand turn, and
(c) the circumstances of the accident and the severity of the claimant’s injuries tend to indicate that his dislodgment from the scooter was quite sudden and that he had had no reasonable opportunity to see what lay ahead on the roadway.
There was nothing in circumstances of the accident to suggest that the claimant was behaving recklessly or inattentively or that he failed to exercise due care while negotiating the roundabout. On the contrary, he had pulled over to allow an emergency vehicle to pass shortly before the accident and he was travelling at an appropriately moderate speed.
In the circumstances of this matter, and for the purposes of s 3.28 of the MAI Act, I find that the claimant was not at fault in the motor accident.
COSTS
The claimant was successful in this application.
There is no reason why the claimant should not be allowed his legal costs in the regulated amount prescribed by the Motor Accident Injuries Regulation 2017 (the Regulation) which is $1,710 plus GST.
The claimant has made an application for his costs above the regulated amount prescribed by the Regulation pursuant to s 8.10(4) of the MAI Act on the basis that there are exceptional circumstances. In reply, the insurer submitted that there are no exceptional circumstances in the matter.
Section 8.10(4) of the Act provides that the Commission can permit payment of legal costs incurred by the claimant if exceptional circumstances exist to justify the payment of those costs.
I have considered the submissions made on the issue by the claimant in his submissions of 7 May 2021. I do not accept that the circumstances advanced by the claimant in paragraph 4.6 are sufficient to warrant an exceptional costs order. In my view, the matter was not necessarily a complex liability dispute and it was determined on the papers.
Accordingly, I decline to exercise my discretion pursuant to section 8.10(4)(b) of the MAI Act to permit the claimant’s costs beyond the regulated amount.
I allow the claimant’s costs in the regulated amount of $1,710 plus GST.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
For the purposes of s 3.28 of the MAI Act, the motor accident was not wholly or mostly caused by the fault of the claimant.
The decision takes effect from: 23 February 2021.
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Regulation is $1,881 inclusive of GST.
Maurice Castagnet
Member (Motor Accidents Division)
Personal Injury Commission
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