Mahfoud v AAI Limited t/as GIO
[2025] NSWPIC 45
•13 February 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Mahfoud v AAI Limited t/as GIO [2025] NSWPIC 45 |
| CLAIMANT: | Jalal Mahfoud |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | David Ford |
| DATE OF DECISION: | 13 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under sections 7.36(3) and 7.36(4); claimant was driving his motor vehicle along the Horsley Drive at Carramar and was attempting to change from the kerbside lane to the right lane when a collision occurred with the motor vehicle being driven by the insured driver; the insured vehicle was virtually alongside the claimant’s vehicle immediately prior to the collision and it was unsafe for the claimant to attempt to change lanes in such circumstances; determined the claimant did not engage his turning signal (blinker) at least 8 to 10 seconds prior to the collision nor was it accepted the claimant saw the insured vehicle in his rear vision mirror prior to the collision; Held – the claimant was negligent as he did not exercise all due care and caution when attempting to change from the kerbside lane to the right lane and there was no finding as regards to contributory negligence; on the issue of liability for the claim the insurer is entitled to deny liability for the claim and the amount of damages for that liability; no findings regarding an assessment of damages under sections 7.36(3) and 7.36(4); claimant is not entitled to payment of schedule costs and disbursements. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of claim for damages made in accordance with s 7.36 of the Act On the issue of liability for the claim, the insurer by liability notice dated 6 April 2023 is entitled to deny liability for the claim and the amount of damages for that liability.1. Having regard to the fact that the claimant was unsuccessful in his claim and is self-represented I find the claimant is not entitled to payment of schedule costs and disbursements.2. Attached to this certificate are reasons for my assessment.3. |
STATEMENT OF REASONS
INTRODUCTION
On 18 May 2021 at approximately 7.00am Jalal Mahfoud (the claimant) was driving his motor vehicle along the Horsley Drive at Carramar. There are two lanes on the Horsley Drive and the claimant was driving in the left kerbside lane. He then decided to change from the left lane to the right lane, when a collision occurred between his vehicle and the insured vehicle. As a consequence of this collision, the claimant’s vehicle was pushed onto the opposite side of the roadway and was struck by another motor vehicle driven by Rolesh Narayan.
At the assessment conference, the claimant stated he was travelling at a speed between 55 kmph and 60 kmph. Before attempting to change lanes, he engaged his turning signal(blinker) for at least 8 to 10 seconds. He further stated, he could see the insured vehicle in his rear vision mirror but had plenty of time to change lanes. He was asked whether he reduced the speed of his vehicle, but replied he could not remember when he reduced speed but stated he definitely did reduce the speed of his vehicle at some stage. He further stated the insured vehicle collided with the rear of his vehicle.
He was shown photographs of damage to the driver's rear side of his vehicle, which contradicted his claim his vehicle was struck from the rear. He replied it was not possible for the insured vehicle to hit the right-hand rear side of his vehicle.
He was also shown a photograph which depicted the only damage to the insured vehicle was to the front offside of the vehicle. The claimant agreed with this fact. He also agreed the damage to the insured vehicle was not across the whole front of the vehicle. In response, the claimant stated it was possible the insured driver was trying to avoid him and was trying to turn right to avoid a collision.
The driver of the insured vehicle was questioned at the assessment conference. He did not accept the claimant’s version of the accident and in fact, stated the collision was instant. He stated the claimant was driving his vehicle at a faster speed than his vehicle. The insured driver was travelling at approximately 60kmph and there was no evasive action available to him, as the claimant, without warning, drove his vehicle into the right lane when he was virtually alongside of the insured vehicle. The insured driver did not attempt to apply his brakes, as there was insufficient time available to him.
The claimant was born in 1984 and is presently 40 years of age.
Outline issues in dispute
As stated above the insurer has denied liability for the claim and by agreement, this issue has to be determined first before I can determine issues regarding the claim for damages.
Documents considered
I have considered the documents provided in the application and the reply and any further information provided by the parties.
Submissions made by the claimant.
I refer to the Application for personal injury benefits completed by the claimant and dated
21 August 2021. He provides the following description as regards the accident:“I was driving along the Horsley Drive Carramar. I changed from the left to the right line. The vehicle behind me sped up and hit me (DAB94A), from behind. My car was pushed to the other side of the road and my vehicle was hit by another vehicle (DCO27W).”
The claimant served a statement dated 1 October 2024. I refer to the following paragraphs:
“9. I recall there was two lanes on the Horsley Drive at Carramar. I recall travelling in the inner lane closer to the curb side. I saw that traffic was piling up in my lane. I recall looking at my right-side mirror and saw the vehicle at fault bearing registration DAB 948 still far behind me. I would estimate the distance was around 15-20 metres behind me.
10. that time, I saw it safe, and I wanted to merge right into the outer lane of two lanes. I recall slowing down taking my feet off the accelerator, then indicated right for about 10 seconds simultaneously looking over my shoulders to check my blind spot. I do not recall seeing any cars, so I merged right into the outer lane of two lanes.
11. As soon as I finish merging into the outer of two lanes, I felt a big impact from the back of my vehicle. As my steering wheel was slightly turned to the right and I had my foot off the brakes, the big impact pushed my vehicle forward and spun out of control towards the opposite side of the road, hitting another car in the northerly direction.
12. I believe the driver who rear ended me must have sped up as I was completing my merge into the other lane as I recall travelling at about 50km immediately before intending to merge and I had slowed down slightly to merge safely into the outer lane.
17. I believe I am not responsible for the accident that occurred on 18 May 2021, and I believe that I am not at fault as I merged into the right lane like any driver would and the back of my vehicle was struck by the driver of the vehicle at fault, being a Ford Focus (bearing registration (DAB948). The driver of the vehicle at fault had to give way to my vehicle and failed to do so, leading to the accident which resulted in severe injuries to me. The driver of the vehicle at fault also ought to have kept a proper lookout for my vehicle and failed to do so.”
Submissions made by the insurer
I refer to the statement of the insured driver dated 1 July 2021, in particular I note the following paragraphs:
“31 where the accident occurred on the Horsley Drive at Carramar it was a straight section of road. Just after a bend. There are two lanes of traffic each way divided by double unbroken lines.
34 At about 6:45 am on Tuesday 18 May 2021 I was driving my car DAB948 in a southerly direction along the Horsley Drive in the lane closest to the middle of the road lane 2. I was just passed a set of traffic lights, so I was travelling about 55 to 60 km/hr, 60 being the speed limit for that area, I heard, before I saw him the other car 152ZRE, a Toyota Corolla ,coming up from behind me in the kerbside lane , lane 1 .That car was travelling much faster than my car, as he passed me, so he was travelling more than 60km. I saw that there was a car in his lane in front of him a number of car lengths in front of my car. He then cut into my lane: I assume that he was trying to get past the car in front of him in his lane, as I said I consider that he was speeding and he wanted to change lanes to get past the car in front of him, who was travelling basically at the same speed as me, which was the speed limit. As he cut or moved into my lane in front of me, he didn't give himself enough room for that manoeuvre. as he changed lanes his rear quarter panel basically near his rear driver's side wheel, drove into the front nearside of my car, when he changed lanes, his momentum of driving, clipping my car, wrapped his car around the front of my car, as he then spun into oncoming traffic travelling north along the Horsley Drive basically facing the same direction of travel, facing south. A Rav 4 travelling south along the Horsley Drive in lane 2 DCO27W didn't have time to avoid the car, he slammed on his brakes but collided with the rear of that car 152ZRE the Corolla.
35. Going back to the start of the sequence of events of the accident, as I said I first noticed the the Corolla 152ZRE by hearing him. I didn't see him coming in my rearview mirror I heard his exhaust blaring which drew my attention to him. The first time I saw him was when he was in the process of trying to cut in front of my car when he changed from lane one into my lane 2. I didn't really see him before the impact on the front of my car. I remember looking up and there he was sideways at the front of my car, then spinning off into the oncoming traffic. I can't even recall seeing his right indicator on, all I remember was looking up and there he was in front of me.
36. When I mention about the Corolla trying to get past the car in front of him in his lane, lane 1, I think that in relation to my car, that car was in front of me in the kerbside lane was about 5 to 8 car lengths from my car. The Corolla had a fair way, a fair amount of space to get past him, but he just missed time his manoeuvre changing into my lane in front of me
37. At no stage did I speed up, I maintain my speed up until the impact, he just misjudged it changing into my lane in front of me. I would say that I was travelling at the same speed as the car he was trying to overtake
38. As he clipped my car feeling the impact, I slammed on my brakes and came to a stop within a few seconds. I watched his car spin off to the other side of the road and get collected by the Rav 4 when his car spun off into the oncoming traffic. I had basically come to a stop when the Corolla was struck by the Rev 4. He was basically facing that direction of travel; he had been completely turned around after clipping my car, the Rav 4 impacting the rear of his car”
I refer to the statement of a witness to the accident, Rolesh Narayan who was the driver of the Rav 4 sedan DCO27W, which collided with the claimant’s vehicle. The statement is dated 13 July 2021. I refer to the following paragraphs:
“25. At about 7:00 am on 18 May 2021, I was driving my car DCO27W along the Horsley Drive in lane two, the lane closest to the middle of the road in a northerly direction. There are two lanes in my direction and there are two lanes in the opposite direction. I was travelling below the speed limit about 50km/hr.
26. I could see the traffic travelling in the opposite direction along the Horsley Drive starting to build up, but I could see spaces between the cars. It was not heavy traffic.
27. As I was driving my attention was drawn to a car travelling along the Horsley Drive, in a southerly direction, a Toyota Yaris, he was in the lane closest to the kerb, lane 1. I saw that Toyota changed lanes from lane 1 into lane 2 directly in front of a Ford Focus that was travelling in lane 2. As the Toyota changed lines, I think he clipped the front of the Ford Focus, which then spun him around and he ended up in my lane. This happened only metres from my car. I tried to avoid colliding with the Toyota, which was directly in front of, me in my lane by trying to move, to duck into the other lane, beside me lane 1, but the Toyota kept spinning across both lanes. I collided with the back of the Toyota and ended up mounting the kerb and footpath. The Toyota spun again and ended up behind me.
28. When the accident occurred, there were no cars directly in front of me in my lane. It was lucky that there were no cars in the lane beside me, as I moved into that lane to try and avoid colliding with the Toyota
29. When I first saw the Toyota in the process of changing lanes, my attention was drawn to him because of the noise of the collision with the Ford Focus and then I saw the angle of the Toyota across the front of the Ford Focus and spinning into my lane. At that point my car would have been about two or three car lengths back. From the point of collision with me for the Ford Focus and then the Toyota coming into my lane, it was only one second or so it was very quick The action that I took to try and avoid colliding with the Toyota was instinctive reacting to the situation swerving to the left. I didn't really have time to think I had my foot on the brake immediately to try and stop, but realised there was not enough time and space to stop so I tried to move into the other lane, but the Toyota had kept moving into that lane as well, so I could not avoid coming into contact with him.”
Report of William Keramides
The insurer served a report from William Keramides, collision dynamics expert, dated
13 November 2023. The report is comprehensive and contains numerous photographs of the vehicles involved in the multiple collision. The report was of some assistance to me in determining the question of liability, as I did find the photographs of the damage to the various vehicles to be of assistance. In summary, Mr Keramides is of the view, the most probable scenario, consistent with the accounts of the insured and Mr Narayan and inconsistent with the claimant’s account, the primary cause of the collision was the claimant's attempt to rapidly change lanes from lane 1 into lane 2 when it was unsafe to do so. Furthermore, he was of the opinion, there was nothing which the insured driver did or didn't do, which could be considered as inappropriate in the circumstances.
REASONS
I prefer the version of the accident as recounted by the insured driver, both in his statement and orally at the assessment conference. I also prefer the version of the accident as recounted by the independent witness to the accident, Rolesh Narayan.
I find the claimant did not exercise all due care and caution when attempting to change from the kerbside lane to the right lane, as I find the insured vehicle was virtually alongside the claimant’s vehicle immediately prior to the collision, and he should have noticed the insured vehicle and realised it was unsafe to attempt to change lanes. I do not accept the claimant’s statement he engaged his turning signal (blinker), at least 8 to 10 seconds prior to the collision, nor do I accept he saw the insured vehicle in his rear vision mirror prior to the collision.
I also do not accept the claimant’s statement the insured vehicle collided with the rear of his vehicle. I find the insured vehicle impacted the claimant’s vehicle at the rear quarter panel, near the rear driver's side wheel, as depicted in the photographs attached to the report of
Mr Keramides.Accordingly, I determine the insurer by liability notice, dated 6 April 2023, is entitled to deny liability for the claim and the amount of damages for that liability. In view of my finding, it is unnecessary for me to make any findings regarding an assessment of damages.
Having regard to the fact the claimant was unsuccessful in his claim and was also self-represented, I find the claimant is not entitled to payment of schedule costs and disbursements, and accordingly, I make no assessment of schedule costs and disbursements in favour of the claimant.
CONCLUSION
On the issue of liability for the claim, I determine the insurer, by liability notice dated
6 April 2023, is entitled to deny liability for the claim and the amount of damages for that liability.Having regard to the fact the claimant was unsuccessful in his claim and was self-represented, I find the claimant is not entitled to schedule costs and disbursements.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017;
· Personal Injury Commission Regulation 2020;
· Motor Accident Guidelines 2017, and
· Personal Injury Commission Rules 2021.
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