Mansour v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mansour v QBE Insurance (Australia) Limited [2022] NSWPIC 336
CLAIMANT:	Amira Mansour
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Elizabeth Medland
DATE OF DECISION:	28 June 2022
CATCHWORDS:	MOTOR ACCIDENTS - Whether the Claimant was mostly at fault under section 3.11 and 3.28 of the Motor Accident Injuries Act2017; T-intersection collision; whether the Claimant had entered the intersection at the time of collision; consideration of expert evidence; Held – Claimant mostly at fault.
DETERMINATIONS MADE:	Certificate Issued under section 7.36(4) of the Motor Accident Injuries Act2017 and clause 7.497 of the Motor Accident Guidelines 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. Effective Date: This determination takes effect on 7 May 2019 4. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,710 plus GST

Reasons for Decision

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

Background

This determination relates to a dispute between the parties as to whether the injured person is mostly at fault in the motor accident pursuant to sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the MAI Act).

Amira Mansour (the claimant) is a 58 year old woman who suffered injury as a result of a motor accident occurring on 29 October 2018.
The claimant lodged an Application for Personal Injury Benefits (claim form) with QBE (the insurer) who is the insurer of the vehicle the claimant alleges to be at fault.
Presumably, liability was accepted for the payment of statutory benefits for the first 26 weeks. However, by way of notice dated 10 April 2019 the insurer denied liability for ongoing statutory benefits after 26 weeks. The reason for the denial of liability given was that the insurer considered the claimant to be mostly at fault in respect of the accident.
An application for internal review was made by the claimant on 17 June 2021. Given that it was over two years from the original decision, the insurer declined to undertake an internal review and instead confirmed that the matter could be referred to the Personal Injury Commission (the Commission).
An application was subsequently lodged on behalf of the claimant with the Commission. The matter has been allocated to me for determination.
I have held a number of teleconferences with the legal representatives of the parties. Some of those teleconferences predominantly centred around a dispute as to the issuing and wording of a Direction to obtain details of the insured driver’s driving record and licence conditions. In addition, the parties were in the process of obtaining expert reports from traffic engineers.
In the most recent teleconference of 5 April 2022, directions were made as to the service of further expert evidence and submissions. Those documents have now been received. Both parties agreed that it was appropriate for the matter to be assessed by me on the papers.

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Legislative framework

Section 3.11 of the MAI Act provides as follows:
“(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%.”
Section 3.28 of the MAI Act provides as follows:
“(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%.
(3)     Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
Pursuant to Schedule 2 cl (3)(d) & (e) of the MAI Act, a dispute relating to sections 3.11 and 3.28 are declared as miscellaneous claims assessment matters for the purpose of Part 7 of the MAI Act.
Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment.

Summary of evidence

The evidence demonstrates that the accident occurred at the T intersection of Walters Street and Hirst street, Arncliffe NSW. The claimant was travelling along Walters street with an intention to turn right onto Hirst Street at the intersection. The insured vehicle was travelling along Hirst street towards Walters street and a collision occurred between the two vehicles at the intersection.
Succinctly, there is a dispute between the parties as to who was at fault with the claimant alleging that the insured vehicle overtook a vehicle that was turning left into Walters street and in doing so collided with her vehicle. The insurer, in contrast, alleges that the claimant attempted to turn right into Hirst street without giving way to the insured vehicle which had right of way.
The claim form lodged by the claimant includes a diagram of her version of events. It essentially depicts the claimant’s vehicle stationary positioned in Walters street at the intersection. A vehicle is depicted turning left into Walters street and marked “A”. The insured vehicle (marked “B”) is positioned after vehicle A with an arrow pointing towards the claimant’s vehicle with the words “overtakes car A”.
The NSW Police report has the accident reported on 30 October 2018 (the day after the motor accident). The report indicates that the claimant’s vehicle was considered to be at fault. The claimant was driving a white Toyota Corolla, and the insured driver, Mr Ali Najjar, was driving a white Mitsubishi sedan. The crash summary details are recorded as follows:
“About 6 00pm on Monday the 31^st of October 2018, driver 1 [the claimant] was travelling in a north-westerly direction on Walters Street, towards the intersection of Hirst Street, Arncliffe. Driver 2 [the insured] travelling in a south-westerly direction on Hirst Street. Driver 1 entered intersection to turn left on Hirst Street. Vehicle 2 collided with the front offside door of vehicle 2. Vehicle 1 collided with the fence of 30 Walters Street. Driver 1 sustained a fractured shoulder and vertebrae. Both drivers remained at scene and were conveyed to St George Hospital.”
The above summary appears to contain two errors. Firstly, the preponderance of the remaining evidence would suggest the claimant had an intention to turn right at the intersection and the reference to ‘left’ above appears to be a typographical error. Secondly, the date of the accident is clearly incorrect and should read 29 October 2018.
Also before me is the police file produced under the Government Information (Public Access) Act 2009 NSW. The documents appear to include a witness statement, but the details of that witness and the content of the statement have been redacted. It is apparent that such statement is likely the claimant’s. A statement of the insured, which originally appeared as a notebook statement, is included. That statement has the insured state: “I was driving up Hirst Street on my way home and out of nowhere she just popped out of Walters Street”.
When police asked the insured how fast he was driving, he replied: “the normal speed. You can’t speed in that street”. The insured also confirmed that he suffers from cerebral palsy.
The police documents include a handwritten notebook statement of the insured. It states as follows:
“On 31 October 2018 (appears to be an error, and should read 29 October 218)
I was driving my car as white Mitsubishi. I don’t remember what time of day, but I remember I had a crash. I remember driving from my grandmother’s house in Edward Street, I turned right onto Hirst Street, to go back to my Mum’s house on Kembla Street. I drive that a few times a day. I remember driving on Hirst Street, and when I got close to Walter Street. A ute turned left down the street before I got to Walters Street. There was [illegible] parked on the left side of Hirst Street. A car drove in front of me. The car moved in front of me in the intersection. I tried to press to press [sic] my brakes hard but I couldn’t stop in time. I tried to turn the steering wheel but it was hard to turn when I was pressing on the brake.
My car it the other car just behind the driver door because I tried to swerve to the left the other car rolled back into the house on the corner.
I think the time it happened was close to the evening.
…”
Photographs are included in the police documents. The insured vehicle is shown to have extensive damage to the front driver’s side and the driver’s side panel over the front wheel. Air bags are shown deployed.
The photographs of the claimant’s vehicle demonstrate extensive damage to the side panels, driver’s side. Damage to the rear of the vehicle is also depicted. Photographs of the front of a house demonstrate damage to a front porch fence. It is noted that the claimant’s vehicle collided with same.
As mentioned above, it appears that the redacted notebook statement is from the claimant. However, the “COPS” report included in the documents includes the following words:
“MANSOUR denied entering the intersection at the time of the collision and stated she was stationary at the time. This is not consistent with the damage to her vehicle which would mean she was half way through making a turn onto Hirst Street.
MANSOUR deemed to be at fault by entering intersection without giving way to oncoming traffic.
Both form of demands uploaded to IMS.
TIN to be issued.”
I understand “TIN” to mean Traffic Infringement Notice. It would appear that the claimant sought to challenge such notice. In this regard an “Advice of Court Result” from the Local Courts of New South Wales confirms that the charge of “not give way to vehicle-turn from terminating road” was dismissed-withdrawn on 23 December 2020.
The insurer had Verifact undertake a factual investigation. Before me is a report of Verifact dated 8 April 2019. The investigators obtained a statement from the insured driver and conducted an interview with the NSW Police. The report itself essentially is a summary of the material obtained. As such I have not considered the report itself in reaching my decision, and instead have considered the primary evidence attached to it.
Investigators obtained a signed statement of the insured driver, Mr Ali Najjar, dated 14 March 2019.
The insured noted that his vehicle was comprehensively insured with NRMA and the car was written off. He was paid out a cash amount and no excess was deducted.
The insured states that the speed limit at the relevant part of the roadway is “50 or 60k per hour”. He described the weather to be fine and dry. He confirms that he is not aware of any witnesses.
The insured denies suffering from any illnesses or injuries that would have adversely affected his ability to drive a motor vehicle. He confirms having suffering cerebral palsy from birth. From paragraph 28 the insured relevantly states as follows:
“At the time of the accident I was not using any type of hand-held device or listening to any loud or distracting music.
I am familiar with the roadway where this incident occurred and have travelled on it prior to this accident.
I recall I was travelling along Hirst Street Arncliffe at about 50k per hour and there were no cars ahead of me and I flowing along, and my street was about 200 ahead and that was where I was going to make a left into Lakemba street.
All of a sudden without warning the Claimants car has made a right turn out of Walters street into the path of my car and I had no time to avoid the collision and the front of my car has collided with the Passenger side of her vehicle.
The Claimant was coming out of a T-intersection Street with a stop sign or Give Way sign and she needed to give way to me, but she has made a right turn without safety and she caused this accident. The Claimant should had given way to me flowing along Hirst Street.
The impact was a major impact and my airbags went off and there was a lot of damage to my car. The impact pushed her car up the gutter and onto a footpath.
I was unable to get out of my car at the scene and there were a lot of people at the scene including the police, fire brigade and an ambulance and I was taken out of my car and conveyed to St George hospital. When I was at the scene the police told me, it was the other lady’s fault as she came out of the side street and made a right turn without giving way.”
The investigators conducted an interview between Trent Southworth of Verifact, and Leading Senior Constable Elizabeth Phillips (the police officer) on 5 April 2019. Before me is a transcript of that recorded interview.
The police officer confirms that in her duties with the NSW Police Force she has attended hundreds of motor accidents. She confirms that she attended the scene of the accident. The investigator asked the police officer what the circumstances of the accident were, in her opinion. The police officer stated that the claimant was at the intersection of Walters Street and Hirst Street and was indicating to turn right. The insured was travelling in a south westerly direction on Hirst Street. The claimant “has turned right or attempted to turn right on to Hirst Street and hasn’t checked that the intersection was clear and has collided with driver 2”.
The police officer confirmed that statements were taken from both drivers. The statement of the claimant is read by the police officer and is recorded as follows:
“I just came up Walters Street to the intersection of Hirst Street Arncliffe, indicating to turn right on to Hirst Street. I looked to the right and saw a car indicating to turn left on to Walters Street, and he had a couple of cars behind me. I want it to be clear to turn left, as some people change their minds. I looked to my left and also there was a car approaching. I looked to the right and saw the second car behind the one that was turning left, overtake and come straight at me.”
The statement of the insured, which is set out above, is also read out in part.
The police officer confirmed under questioning that there is no evidence provided that a car was turning left into Walters street.
The investigator questions the police officer as to whether the intersection would allow enough room for the insured to overtake a vehicle that was turning left into Walters street. The investigator notes that the street is quite narrow. The police officer agrees that it is quite narrow but states that she does think there is just enough room to make such a manoeuvre. Further to this, the police officer states: “…and if so, being on Hirst Street and that car flowing, if there’s nothing oncoming and there’s no double, it’s entitled to go round and overtake”.
The police officer confirms that both airbags in the claimant’s vehicle were deployed and she was trapped by compression with the front driver’s side door pushed in.
In respect of damage to the insured vehicle, the police officer confirmed that the damage was to the “front passenger”.
The investigator states the insured was in a wheelchair and asks: “No issues licence wise, everyone’s licenced? Both parties licenced?” and the police officer replies “Correct”.

Expert reports

Both parties have commissioned expert reports from traffic engineers. The claimant has served reports of Grant Johnston. The insurer has served reports of
William Keramides. For ease of reference I have summarised the reports in chronological order.

Report of Grant Johnston dated 15 December 2020

In preparing this report, Mr Johnston notes he reviewed documents which included:
a.    a letter of instructions dated 1 June 2020;
b.    NSW Police Report;
c.     22 colour photocopies of contemporaneous photographs showing the incident located and involved vehicles, and
d.    the claim form.
There is no statement of the claimant provided to Mr Johnston, however, evidently he was provided with a number of assertions as assumptions upon which to base his report. Those assumptions are relevantly set out as follows:
“she was the driver of motor vehicle Toyota Corolla (RN AM 10 RA). She was driving along Walters Street towards Hirst Street, with the intention of turning right onto Hirst Street.
However, before she could do so, her vehicle was struck by the vehicle driven by the Defendant (Mr Ali Najjar), a white 2006 Mitsubishi Sedan, which was proceedings along Hirst Street in a south-westerly direction.
The Plaintiff says that when she approached the intersection, she came to a stop. There was a vehicle driving slowly on Hirst Street with its left indicator on, and several cars behind it (one of which was the Defendant). The Plaintiff intended to wait for it to turn left before proceedings and was also giving way to a vehicle proceeding north-east on Hirst Street.”
However, the Defendant presumably impatient with the slow vehicle in front of it, overtook, but in doing so drove into the path of the plaintiff, causing the collision. The Plaintiff believes that this may have occurred because the street is narrow and the insured was attempting to avoid the aforementioned vehicle travelling north-east. There were cars parked on the side of the road.
The photographs of the Plaintiff’s car after the accident show that it:
a. was located in the yard of the corner house at 30 Walters Street. The Plaintiff says that this is critical in that it demonstrates that the Plaintiff could not have entered the intersection to any substantial degree, and
b. sustained substantial damage – the plaintiff was trapped in it until extracted by the Fire Brigade.
The Plaintiff estimates that the insured was travelling at 70kph. Note that the speed limit for the area is 50kph. The police report records the Defendant travelling at 60kph. There is a park, a 40kph school zone, and a childcare facility nearby.
The Defendant has cerebral palsy, though did not appear to be driving a modified vehicle. In the local area he is known to walk around with the aids of crutches as he is not steady on his feet.”
Mr Johnston notes the police report has the claimant turning left, when he is instructed she intended to turn right. He therefore states that there are three possible scenarios, being:
a.    the claimant being stationary;
b.    the claimant turning right, and
c.     the claimant turning left.
Mr Johnston notes the damage to the insured vehicle to be on the front right quarter panel in a direction from front to rear consistent with a shallow frontal impact on the right edge of the vehicle.

He describes the damage to the claimant’s vehicle to be on the right side mainly between the front right wheel and the B-pillar which is the vertical post between the front and rear doors. This appears to have been created in a direction from the front towards the rear of the vehicle.
The debris at the scene is considered by Mr Johnston to be non-definitive.
In respect of tyre marks, Mr Johnston states that he could not correlate any of the tyremarks to the rest position of the involved vehicles or the suggested impact configuration of any of the suggested scenarios.
Mr Johnston then explains that he analysed the damage to the vehicles, on the basis of a “conservation of momentum analysis”. He explains that it is a tool whereby the momentum during a collision event must be conserved. Momentum is the vector of mass times velocity of each vehicle. It is further stated that a consequence of this Law is that when two vehicles collide the resultant motion must lie within the quadrant formed by the vehicle’s pre-impact vectors.
On the basis of such analysis, Mr Johnston concludes that of the three scenarios mentioned above, the only one which could provide a possible solution is scenario one, namely that the claimant was stationary.

Report of William Keramidas dated 10 November 2021

Mr Keramidas lists the documents he considered in the preparation of his report. That includes the COPS Event Entry, the interview with Leading Senior Constable Phillips. In terms of the claimant’s version he had before him the statement to police, the claim form and the information provided to Mr Johnston. In terms of the insured’s version he considered the statement to police and the statement to the Verifact. Mr Keramidas also notes scene and vehicle photographs and video footage captured by the insured’s sister.
Mr Keramidas noted the damage to the vehicles and sates that the claimant’s vehicle sustained damage consistent with an impact to its off-side between the ‘A’ and ‘B’ pillars. Damage to the rear is noted due to the collision with the front fence of the house.
In respect of damage to the insured’s vehicle he notes compression and distortion of the panels on the front off-side of the vehicle incorporating the off-side headlight assembly as well as the front off-side guard.
Mr Keramidas concludes, based on his analysis of the damage to the vehicles, that the collision impact location being the approximate centre of the intersection and about
3.3 m notionally north of the southern kerb alignment of Hirst Street. This meaning that the impact location would mean that the Toyota had entered the intersection and travelled a distance of about 5 m by the time the impact occurred.
In terms of speed, Mr Keramidas concluded that the claimant’s vehicle was likely travelling between 14 and 16 km/h and the insured at between 48 to 60 km/h and more probably 54 km/h.
It is also concluded that the time taken for the claimant to move into the intersection prior to impact would not have been sufficient for the insured to have perceived and responded to an extent where the collision could have been avoided, regardless of his speed.
It is stated that the collision would have been avoided if the claimant had waited until the insured had cleared the intersection prior to attempting to turn as required by the Road Rules.
Mr Keramidas considered the evidence to be inconsistent with the claimant’s version of events, and instead it is consistent with the insured’s version of events.
The report of Mr Keramidas reveals he was provided with a copy of the letter of instructions to Mr Johnston and other material. That includes a sketch of the accident scene. That sketch is reproduced in his report. It is consistent with the diagram the claimant provided in her claim form. It is noted that she is marked as stationary at the intersection and the insured’s vehicle overtaking a vehicle turning left into Hirst street and into the claimant’s stationary vehicle.
In respect of the video footage, Mr Keramidas notes it is a short three second video apparently taken by the insured’s sister at the scene of the accident. The video depicts the vehicles at rest, however, given its short duration and low quality,
Mr Keramidas considered it to be of limited assistance in his analysis. However, it was consistent with the ‘at-scene’ photographs provided.
Mr Keramidas provides analysis of a number of ‘street view’ images of the subject intersection and roadway.
He found there to be no assistance gained from the tyre marks as to the point of impact. This is consistent with the opinion of Mr Johnston.
Through analysis of the photographs and the damage to the vehicles, Mr Keramidas concludes the impact to be the insured’s vehicle at an angle to the left so that the front driver’s corner impacts with the front driver’s door of the claimant’s vehicle.
Mr Keramidas concludes that with the claimant travelling at a relatively low speed in comparison to the insured, the impact forces operating on the claimant’s vehicle would push it back and to the left relative to its orientation, with a anti-clockwise rotation. In addition, the insured vehicle would likely have also moved forward and to its left although the rotation would be expected to be greater (although in a clockwise direction).
It is then concluded by Mr Keramidas that taking into account the likely impact configuration as well as the expected dynamics resulting from that configuration, the likely impact location requires that it be to the north-east of the rest positions of the two vehicles. This places the vehicles approximately in the middle of the intersection at the point of impact.
The analysis of Mr Keramidas has the claimant’s vehicle movement at approximately
5 m into the intersection.
When calculating speed, Mr Keramidas undertakes a “human factors assessment”. From same, Mr Keramidas concludes that the expected response time of a driver in the position of the insured would have been around 1.7 to 2.3 seconds.
In reaching his conclusion that regardless of speed the insured would not have avoided the collision, Mr Keramidas goes on to state:
“using the acceleration rates nominated previously for the Toyota and considering the distance travelled from the threshold of the intersection to the point of collision, the time it is likely to have taken for the Toyota to achieve this acceleration would be between 2.25 and 2.6 seconds. This means that the Insured would only have had somewhere between 0 and 0.9 seconds of actual manoeuvre time at the completion of this PRT phase.”
Responding to the opinion of Mr Johnston, Mr Keramidas noted the following:
a.    the material before Mr Johnston was fairly limited;
b.    Mr Johnston attended a site inspection but no material or discussion is made in respect of same, and
c.     the assumptions are noted to be largely consistent with the claimant’s version, however, the assumption regarding speed and school zones, the location of same and the childcare facility is not relevant due to there is no speed limit restrictions applicable as at 6.00pm on a weeknight.
Whilst two of the scenarios considered by Mr Johnston include a scenario of the claimant turning left and this has been excluded outright and appears to be a typographical error in the police report.
Mr Keramidas notes that his opinions aligns with Mr Johnston in a number of matters, including: damage profiles; tyre marks; debris spread; and the impact configuration is very similar, if not close to being identical.
In respect of Mr Johnston’s conservation of momentum analysis, Mr Keramidas noted agreement that wherever the impact occurred the Toyota must necessarily have been moved back and to the left.
Dealing with the scenario concluded by Mr Johnston to be most likely, namely the claimant’s vehicle being stationary at the intersection, Mr Keramidas concludes that in his opinion the post impact movement of the Toyota contradicts the expected dynamics from a collision involving the impact configuration and dynamics previously assessed by both experts.
Mr Keramidas goes on to state:
“In the author’s opinion, the actual scenario would have involved something akin to a mid-point of scenarios one and two whereby the Toyota had completely entered the intersection and was commencing to turn right while at the same time the Mitsubishi had apparently steered or swerved left, most probably in response to the Toyota’s movement. That scenario would not only satisfy the impact configuration, but also the post-impact dynamics expected of such a collision sequence.”

Report of Grant Johnston dated February 2022

Mr Johnston notes that his primary report discussed above, was prepared specifically for criminal proceedings involving the claimant. Mr Johnston was asked to review the above summarised report of William Keramidas. Mr Johnston states in this regard on page 2:
“…I agree with most of the underlying input assumptions, which are mostly consistent with those made in my Primary Report, and I agree in principal with his method of analysis but I do not agree that his analysis proves the outcome he has postulated. To the contrary it will be suggested that it actually disproves his hypothesis as for it to be true the claimant’s vehicle would need to be travelling backwards for it to be valid.”
Mr Johnston states that he does not agree with Mr Keramidas in respect of the rotation of the vehicles in the impact. Mr Johnston notes that Mr Keramidas concedes that the Toyota speed would need to be very slow for this to occur but he instead postulates that it would effectively need to be very close to and probably 0 km/h for the type of motion he has postulated.
In the opinion of Mr Johnston, Mr Keramidas calculations as to speed is likely correct in respect of the insured vehicle but not the claimant vehicle. He does not agree that Mr Keramidas opinion in respect of the position of the vehicles is a feasible solution to the outcome of the accident.
Mr Johnston goes on to confirm his previous opinion that scenario one, namely the claimant’s vehicle was stationary at the time of impact, is feasible. However, importantly he then states:
“I cannot exclude the fact that the Toyota had moved slightly before stopping or virtually stopping as a result of observing a westbound vehicle. I have seen in some case this is observed by the approaching drive rand [sic] they are effectively “balked” by the moving vehicle thinking it may continue into the intersection and have been known to brake or swerve to avoid a vehicle which has subsequently stopped. There is however no suggestion in this case that
Mr Najjar observed any such motion causing him to brake and swerve.”
Mr Johnston explains that in order to test Mr Keramidas impact point and configuration, he ran a series of Virtual Crash simulations using the proposed input data. When running the simulations, Mr Johnston assumed a 12km/h speed of the claimant at the lower end range of Mr Keramidas calculations and 60km/h for the insured vehicle.
Mr Johnston also conducted a Conservation of Momentum analysis using a 3D program where he overlayed the Momentum tool directly onto Mr Keramidas collision scenario.
On the basis of the results of the above tools, Mr Johnston concludes:
“It is therefore my opinion that both methods of analysis show that Mr Keramidas solution is not only unlikely it is not scientifically feasible as a solution to the impact configuration he has proposed.
It is therefore my opinion that the only possible impact configuration was one consistent with the Scenario One I showed in my previous report based on the evidence of the Claimant.”

Report of William Keramidas dated 18 March 2002

Mr Keramidas was provided with further information, including the NSW Police Force file, which includes photographs. He explains that he has carried out a further analysis on the basis of the additional information as well as a review of the supplementary report of Mr Johnston.
Mr Keramidas notes that the police photographs demonstrate more extensive damage to the rear of the claimant’s vehicle than expected, while the projection of the top half of the brick pillar of the house provides a very good indication as to the direction of force being applied by the rear of the Toyota.
Mr Keramidas then states:
“Having reviewed Mr Johnston’s supplementary report it has become apparent that while the two authors agree on a number of the forensic aspects of this analysis, Mr Johnston’s use of the simulation software was unable to arrive at a unique set of conclusions that would satisfy the physical evidence. While the present author found the discussion provided by Mr Johnston as being relevant and on point, having considered that discussion it does not cause the present author to alter any of the opinions expressed wither in the Conclusions of the primary report, nor this supplementary report.”
After analysis of the police photographs, Mr Keramidas explains a slight adjustment to the Toyota’s (claimant’s vehicle) rest position was necessary as a result, which confirmed the vehicle travelling in a southerly direction (backwards) as it impacted with the corner brick pier. It also confirms that there was no lateral motion of the vehicle as it moved back across the footpath area.
After consideration of the new material, Mr Keramidas concludes that there is essentially no change to the likely impact location identified by him in his primary report. There could be a marginal difference as to the precise impact location.
On the basis of the new information, specifically that the ‘roll out’ of the claimant’s vehicle was longer than expected, it is therefore impossible that the post impact speed of the vehicle was lower than assessed, and the impact speed of both vehicles would be lower.
In respect of Mr Johnston’s conclusions after utilising software, Mr Keramidas states as follows:
“Ultimately, the fact that despite Mr Johnston’s best efforts [based on these attempts] he was unable to replicate the physical evidence using the present author’s assessed point of impact does not, in the present author’s opinion, mean that the hypothesis is flawed, but rather the variables within the software package may require further adjustment in order for the analysis to match…”
Mr Keramidas then notes that Mr Johnston’s impact hypothesis is not feasible, in that it only works if the claimant’s vehicle were to have been pushed laterally across Walters street into the area of the brick pillar, but does not and can not, satisfy a rearward motion of the Toyota at the point – with rear impact damage depicted in the police photographs.
On such basis, Mr Keramidas states that the software modelling was unable to provide a unique solution for either his nor Mr Johnston’s impact locations.
Mr Keramidas identifies the damage to the rear of the claimant’s vehicle being critical in that the collision with the brick pier of the house means the claimant’s vehicle must have been north and east of the pillar, which places the vehicle, regardless of angle, squarely within the intersection.

Report of Grant Johnston dated 4 May 2022

Mr Johnston considered the further information that was made available to
Mr Keramidas in his most recent report, and also considered the findings of Mr Keramidas.
Whereas Mr Keramidas opined that there were no sings of lateral movement of the claimant’s vehicle when it collided with the house, Mr Johnston is of the view that there were with horizontal striations on the top surface of the rear bumper.
Based upon the damage to the front brick porch and fence, Mr Johnston disagrees with Mr Keramidas as to the direction of impact. This is important as it can be correlated with the position of the claimant’s vehicle at impact.
Mr Johnston states that he strongly disagrees that the visible damage to the vehicle and the fence was possible on a vehicle simply rolling backwards across the footpath.
Mr Johnston is of the view that damage suggests higher speed of the insured vehicle than previously thought. He goes on to state that: “in my opinion the claimant’s version is consistent with the physical evidence and the insured’s suggested impact configuration is scientifically not possible”.
Scenario one, being the claimant’s vehicle as stationary at the time of impact, continues to be the only scenario that Mr Johnston considers possible.

Submissions

The claimant did not provide initial written submissions, however, some have been provided subsequently. I have summarised the parties’ submissions in chronological order below.

Insurer’s submissions prepared by Sparke Helmore lawyers dated 21 October 2021

It is noted that Allianz is the Compulsory Third Party (CTP) insurer of the claimant’s vehicle. QBE had made a claim for recovery in respect of the claimant’s statutory benefits which has been apparently accepted by Allianz. In addition, the insured driver has apparently made a CTP claim against Allianz for statutory benefits which has been accepted.
In respect of the report of Mr Johnston, it is noted that he was not provided with all the relevant evidence. It is also submitted that Mr Johnston did not consider whether either party may have taken evasive action such as swerving, which may have impacted the damage or resting positions of the vehicles.
It is submitted that the claimant insinuates that the insured’s cerebral palsy may have been relevant to his driving and was not driving a modified vehicle. It is noted that the police officer did not report any restrictions to the insured’s licence.
Mention is made of there being no evidence of the claimant disputing the traffic infringement notice. Of course, the subsequent court notice would demonstrate that the claimant did in fact dispute the notice and the charge was withdrawn or discontinued.
In submitting that the claimant is wholly or mostly at fault the insurer submits:
a.    the NSW Police finding that the claimant was at fault is highly persuasive;
b.    the claimant failed to give way to the insured vehicle in breach of the Road Rules;
c.     the claimant failed to keep a proper lookout, and
d.    the claimant did not exercise reasonable care and have due regard for his own safety.

Claimant’s submissions dated 5 May 2002, prepared by Greg Schipp of counsel instructed by Prominent Lawyers

It is submitted that the opinion of the police as to the fault of the claimant is not admissible as it is not known where the police obtained any narratives, it is not known what the assumptions were. I agree with this submission and have not considered the opinion of the NSW Police as to fault in forming my determination. However, the material provided by police such as witness statements and photographs are relevant and have been taken into consideration by me.
The submissions set out the claimant’s version. It is noted that some of the propositions set out in this regard, go beyond the primary evidence provided by the claimant. They appear to be more assumptions/propositions formulated on behalf of the claimant. In this regard, it is stated “the claimant says that the Defendant, being impatient, overtook that slow vehicle, and in returning to the correct side of the road, veered into her”. This is discussed further below.
The claimant submits that insured was not paying proper attention, as evidenced by the fact that he told police that he did not know the relevant speed limit. It is also submitted that the insured makes no mention of the vehicle that was turning left at the intersection.
The expert evidence of the insurer confirms that the insured was speeding at the time of the accident.
It is submitted that there are “real” issues as to consistency of the insured in his statements. In particular, is noted the insured was not sure of the speed, but on his own expert evidence he was travelling up to 60km/h in a 50km/h zone.
In addition, it is asserted the insured stated the claimant was turning right, but that proposition is rejected by his own expert.

It is asserted that the insured “continually rejected the proposition that he had overtaken a slow-moving vehicle turning left” until his 2020 statement when he “finally acknowledged the presence of a ute turning left”.
It is also asserted that the insured “alleges that he was unable to steer while braking” when Mr Keramidas found that his vehicle was fitted with ABS brakes and should be able to do so.
It is also submitted that the point of impact cannot be explained on the insured’s version with it asserted that,
“if the insured was driving normally, one would expect that the impact would be to the passenger side. The fact that the impact is on the driver’s side is undeniable proof that the insured’s vehicle has spun more than 45 degrees prior to impact.”
It is submitted that the claimant’s narrative should be preferred as it is the only narrative that creates an accident dynamic which is solvable using simulations.
It is also submitted that Mr Keramidas does not respond to the criticism of
Grant Johnston that linear momentum analysis is inappropriate, given the accident was a 360 degree accident.
In respect of speed, it is noted that there is a park, childcare facility and a school zone nearby. Whilst Mr Keramidas notes the time of the accident and therefore the school zone was not in force, it is submitted that even if the speed limit is 50km/h, it does not mean that such speed is safe at any particular time. It is submitted that the insured must travel at a speed appropriate in the circumstances.

Submission of Sparke Helmore dated 27 May 2022 on behalf of the insurer

It is noted that the claimant has not provided a statement in the proceedings, and that whilst the submissions for the claimant that there is a “similar narrative” to the assumptions provided to Grant Johnston, it is noteworthy that the version of events provided to the claimant’s expert in preparing his primary report are instructions he received and instructed to assume.
There is no relevance to the instructions provided to Mr Johnston that the claimant has cerebral palsy, with the only evidence before me relevant to such fact is a copy of the insured’s licence confirming no restrictions.
In respect of the claimant’s submission that the insured was inconsistent in respect of the vehicle turning left, this is rejected. It is submitted that whilst the insured acknowledges a ute turning left into Walters street, there is no evidence as to how far that vehicle was in front and indeed the statement to police is that the ute turned before the insured reached Walters street. Furthermore, this is consistent with
Mr Keramidas’ opinion that the physical evidence is inconsistent with the insured commencing a left steer manoeuvre from the opposite side of the street.
It is submitted that a swerve to the left by the insured amounts to reasonable evasive action to avoid the collision.
In respect of the charge against being withdrawn from Court, it is submitted that it was not surprising that the Police did not incur the cost of obtaining expert evidence to respond to Mr Johnston’s report given that the costs would have far outweighed the limited penalties that apply.
In respect of the expert evidence, the insurer notes that in the February 2022 report
Mr Johnston noted in response to Mr Keramidas’ opinion regarding impact point, being a midpoint of scenarios and would involve the insured steering or swerving to the left. I have reproduced this relevant part above in my summary of the expert evidence. Whilst noting that Mr Johnston did not agree that it was a mid point, the insurer highlights that Mr Johnston did not rule out the claimant’s vehicle having entered the intersection partially. This relevant part is also highlighted above in my summary of expert evidence.
The insurer goes on to submit:
“Mr Johnston had excluded the hypothesis proposed by Mr Keramidas and the possibility of the claimant having moved into the intersection at all on the basis that there was no suggestion of the required motion of the insured of steering or swerving to the left.
However, significantly, Mr Johnston at the time of preparing his February 2022 report, did not have available to him the insured’s September 2020 statement to police, which described the insured driver both braking and swerving to the left by way of evasive action.”
Accordingly, it is submitted that Mr Johnston has not considered whether either party had taken evasive action, such as swerving, which may have impacted the damage or resting positions of the vehicles. It follows additionally, that the claimant’s submissions as to there being no explanation for the rotation of the insured’s vehicle on
Mr Keramidas’ hypothesis is not correct, given the statement of the insured that he swerved to the left.
The insurer submits that the insured’s evidence has been taken out of context in the claimant’s submissions in that he did not state that he could not steer, but instead that it was hard to turn when pressing on the brakes.
It is also submitted that:
“the assertion that there are no inconsistences in the claimant’s narrative is delusive or fallacious in that the claimant has not prepared a statement in relation to this dispute. An assumed version of events were put to her instructed expert.”

Reasons

Despite five expert reports being lodged in this matter, the issue can be distilled as to whether the claimant failed to give way and entered the intersection into the path of the insured vehicle.
The claimant’s case is that she had remained stationary, had not entered the intersection, and instead the insured’s vehicle overtook a turning vehicle in front of him, lost control of his vehicle or for some other reason veered to the left and collided with the claimant’s stationary vehicle in Walters street.
The insurer’s case can be summarised with the insured travelling along Hirst street, at about the speed limit when the claimant entered the intersection to turn right, into the path of the insured. The insured took evasive action by braking and swerving to the left, however was unable to avoid a collision with the claimant’s vehicle.
For the reasons expressed below, I consider the version of events submitted on behalf of the claimant to be less plausible to the insurer’s position.
Firstly, I am troubled by the fact that the claimant has not provided a statement in this matter. The claimant’s expert evidence is at least partly based upon a list of assumptions he is asked to accept. Those assumptions go beyond the primary evidence of the claimant. Some of those assumptions are not supported by the evidence and could instead be described as a “theory”.
The claimant provided a sketch in her claim form and also before me is a short statement provided to police, although the notebook statement is redacted in the police material. However, the police officer did read out the version during the interview with the investigator.
That short statement and the sketch provided in the claim form, confirm the claimant alleges that she was at the intersection with an intention to turn right. A vehicle was indicating to turn left into Walters street. There was a car approaching to her left. The insured driver is said to have overtaken the vehicle turning left and came straight at her.
However, the assumptions that Mr Johnston was asked to accept that are set out in his initial report go beyond the evidence of the claimant. For example:
a.    there is no evidence from the claimant as to the speed of the vehicle that was indicating to turn left into Hirst street;
b.    there is no evidence as to the claimant’s intention to wait for such vehicle to turn left;
c.     the statement that the “plaintiff believes” in respect of the insured attempting to avoid the vehicle travelling in the other direction and the width of the street is not included in the direct evidence of the claimant;
d.    the estimation of the speed of the insured’s vehicle does not form part of the evidence direct from the claimant, and
e.    the mention of the insured’s cerebral palsy is both irrelevant on the evidence and inappropriate. There is no evidence as to his movements around the area “on crutches”. Whilst Mr Johnston rightly does not seem to factor this issue into his reasoning, it was an inappropriate assumption to have included in the instructions without any relevant evidence.
Given that the report of Mr Johnston is based upon, at least partially, assumptions that are not made out in the evidence, the conclusions drawn in the reports must be treated with some level of caution.
I also agree with the insurer’s submissions that the claimant’s submissions have taken the insured out of context. Firstly, the suggestion that the insured is inconsistent that no vehicles were in front of him, is not accepted by me. In this regard, he advised police that a ute had turned down Walters street, before he had reached the intersection. I accept the insurer’s submission that there is no evidence as to how far ahead the ute was from the insured’s vehicle.
The claimant’s submissions suggest that the insured stated that he could not steer, however, I do not accept that being the insured’s evidence. He merely stated that he found it “hard” to steer when he applied the brakes.
I also accept that there is no evidence to suggest that the accident occurred during a “busy time of the day”. In any event, this contention does not appear to have been a consideration in the experts’ conclusions.
The two experts in this matter agree on a number of important factors. The opinions differ as to the position of impact. I do give some weight, however, to Mr Johnston’s simulations failing to produce an outcome consistent with the conclusions drawn by
Mr Keramidas. Although, on the other hand I also accept that the inputs to the simulation, if altered, may have produced different outcomes, as pointed out by Mr Keramidas.
There is also general agreement as to the angle of the impact.
What is crucial to whether the claimant failed to give way and entered the intersection, is the point of impact on the roadway. Having considered the opinions of both experts, I do not consider the divergence on this point to be significant if the expert opinions are carefully considered.
Whilst Mr Keramidas considers the claimant was in motion at the time of impact,
Mr Johnston has concluded that the claimant’s vehicle must have been stationary. However, there is no definitive opinion of Mr Johnston as to the exact location of the claimant’s assumed stationary vehicle at the point of impact.
In this regard, it is important to note, as pointed out by the insurer in their submissions, that Mr Johnston could not discount the possibility that the claimant’s vehicle had entered the roadway to a degree and had become stationary. In this regard, as set out above, Mr Johnston in his report of February 2022 stated that he could not discount the possibility that the claimant’s vehicle had moved forward and then became stationary and that he had known of scenarios where an approaching driver is “balked” and then swerves in reaction to the vehicle on the roadway. Mr Johnston states, however, that there was no evidence that such manoeuvre was taken by the insured.
However, of course, there is in fact evidence to suggest that the insured did make such manoeuvre. This is set out in his second statement to police where he states he swerved to the left. At the time of writing his report, Mr Johnston was not privy to such evidence.
Accordingly, and based upon the evidence before me discussed above, I make the following findings of fact:
a.    the claimant had moved at least partially into the intersection. I note that such scenario is not ruled out by Mr Johnston;
b.    I find it more likely than not, after considering both experts opinions, that the claimant became stationary in the intersection or otherwise was travelling at a low speed. I find that this is reasonably explained as evasive action taken in the agony of the moment by the claimant to the realisation that she was potentially going to be in the path of vehicles travelling on the roadway, either to her left or right;
c.     the insured reacted to the presence of the vehicle in the intersection by braking and swerving to the left. This is consistent with the insured’s evidence and with the conclusions as to the impact angles of both experts, and
d.    this caused the insured’s vehicle to collide with the claimant’s vehicle at the angle essentially agreed upon by both experts.
On the basis of the above findings of fact, I make a finding that the claimant failed to keep a proper lookout. I also find that she entered the intersection without giving way to traffic, as required by her.
Accordingly, I make a finding that the claimant was mostly at fault.
In respect of any culpability of the insured. I accept the submission that the claimant was travelling in excess of the speed limit. This is effectively conceded by the insurer’s own expert. I accept, however, on the basis of the calculations of
Mr Keramidas that he was travelling at no more than 60 km/h (10km/h over the speed limit) but more likely at 54km/h or marginally less on the basis of additional material.
I also accept the opinion of Mr Keramidas that based on his calculations the accident could not have been avoided regardless of the speed travelled by the insured. However, I cannot discount the likelihood that the impact of the collision would have been less severe had the insured been travelling at or below the speed limit.
However, I find that the breach of the speed limit was relatively minor. Accordingly,
I find that liability of the insured would not exceed 20%. It follows therefore, on the basis of the definition of “mostly at fault” equalling contributory negligence of an injured person being greater than 61% that the claimant was mostly at fault.

Costs and disbursements

As a regulated miscellaneous claims assessment matter under Schedule 1, cls(3)(2)(d)&(e) of the Motor Accident Injuries Regulation 2017 (the Regulation), legal costs may be awarded.
Schedule 1 cl(3)(1) of the Regulation provides that the maximum costs of legal serves provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units. The current value of a monetary unit is $106.89.
Whilst I have found against the claimant, I consider that there was a reasonable basis upon which to argue that the claimant was not mostly at fault. This is especially so when considering the significant impact the dispute upon the claimant’s entitlements.
I am therefore satisfied that the claimant is entitled to the payment of legal costs.
I allow costs in the sum of $1,710 plus GST.

Conclusion

My determination of the Miscellaneous Claims Assessment matter is as follows:

For the purposes of s 3.11 the motor accident was not caused by the fault of another person.
For the purposes of s 3.28 the motor accident was caused mostly by the fault of the injured person.
Effective Date: This determination take effect on 7 May 2019
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Regulation is $1,710 plus GST.

Legislation

In making my decision I have considered the following legislation and guidelines:
·MAI Act;
·Regulation, and
·The Civil Liability Act2002.

[2022] NSWPIC 336

28 June 2022