Marzifar v Allianz Australia Insurance Limited
[2021] NSWPIC 323
•27 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Marzifar v Allianz Australia Insurance Limited [2021] NSWPIC 323 |
| CLAIMANT: | Amir Marzifar |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Brett Williams |
| DATE OF DECISION: | 27 August 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Intersection accident; insured driver making a right-hand turn; claimant proceeding straight ahead; factual dispute about traffic lights; Held - claimant wholly at fault; sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; no exceptional circumstances; claimant’s costs allowed in accordance with the regulated maximum. |
| DETERMINATIONS MADE: | The findings of the assessment of this dispute are as follows: |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
At 10am on 19 September 2019 Amir Marzifar (the claimant) was driving his vehicle in a southerly direction on Pitt Street, Merrylands. When he entered the intersection of Pitt and Walpole Streets there was a collision between his vehicle and the vehicle driven by the insured driver, Jude Rodrigues (JR).
The claimant submitted an application for statutory benefits to the insurer. Liability was accepted for the first 26 weeks after the accident. Liability was denied thereafter, in accordance with ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act), on the basis that the accident was caused wholly by the fault of the claimant.
The claimant maintains that he had a green light facing him as he entered the intersection. On this basis, he maintains that the accident was not caused by his fault and that the accident was caused by JR’s fault.
The insurer denied liability for the claim on the basis of JR’s account of the accident. On JR’s version, he had a green light facing him as he turned right from Walpole Street into Pitt Street. In those circumstances, the claimant must have entered the intersection against a red light and the accident was caused wholly by the claimant’s fault.
The matter was the subject of an assessment conference conducted on 28 July 2020. Evidence was given by the claimant and his wife, Parvaneh Berangi, who was assisted by a Farsi interpreter. JR gave evidence in the insurer’s case by telephone.
Transitional provisions
The Personal Injury Commission (the PIC) was established on 1 March 2021. These proceedings were commenced on 24 April 2020, before the PIC was established. In accordance with Sch 1 Pt 2 cl 14A and cl 14B of the Personal Injury Commission Act 2020 (the PIC Act), the proceedings constitute pending proceedings and pre-establishment proceedings that I am empowered to determine.
Evidence
The claimant submitted an application for personal injury benefits dated 6 December 2019. The application records that the accident occurred at 10am on 19 September 2019. In the application it is recorded that “The other car past red light turning right (Red Arrow)”.
The claimant has provided two statements, the first dated 13 May 2020 and the second 23 June 2021. The 13 May 2020 statement records that on 19 September 2019 he was travelling in his vehicle on Pitt Street Merrylands with his wife and daughter. As they approached the intersection with Walpole Street he observed that he had a green traffic signal. It was his intention to proceed directly through the intersection and continue straight along Pitt Street. As he proceeded through the intersection his path remained clear and the traffic light green. He was travelling at 50 km/h. As he reached the centre he felt an impact to his left on the front passenger door. He applied his brakes after the impact. The claimant stated that he cannot be at fault for the accident as he had a green light. After the accident he lodged a property damage claim. He was not charged an excess. His vehicle was written off. He was provided with a free hire car.
The claimant’s 23 June 2021 statement is unsigned. At the assessment the claimant confirmed that he had read the statement and that it was true and correct. Relevantly, the statement records as follows:
(a) He was proceeding along Pitt Street at Merrylands approaching the intersection of Pitt Street and Walpole Street, which is a “T” intersection to his left. The intersection has traffic control lights.
(b) He is very familiar with this road as he has taken the same route on most weekdays for about 5 years.
(c) There are two traffic lanes in either direction in Pitt Street. As he approached the intersection he was travelling in the right hand lane. There was a truck travelling in the left hand lane beside him.
(d) As he approached the intersection the traffic control light facing him was green. He was traveling at 45-50 km/h. He believed that the speed limit at this point is 60 km/h.
(e) When he reached the intersection the traffic control lights were still green, so he proceeded to drive straight ahead through the intersection whilst the truck beside him did a left hand turn into Walpole Street. As he entered the intersection, a car came out of Walpole Street from his left colliding with the side of his car. The other car was a white Holden Colorado. He was driving a Mitsubishi Pajero.
(f) The front of the other car collided with the side of his car. The front passenger side mudguard on his car was damaged whilst the damage to the other car was at the front.
(g) Immediately after the collision occurred he looked over at the driver of the other vehicle. The other driver looked shocked. He noticed that the other driver had a mobile phone in his hand.
(h) He opened his door to check up on the other driver and asked him if he was alright. The other driver said he was ok but he still looked shocked. He was still holding the mobile phone in his hand and his right hand was over his chest on his heart.
(i) The police and ambulance service attend the scene.
(j) The other driver contacted him. He could not remember if that was on the same day or on the next day. The other driver said words to the effect “I want you to say that the accident was your fault, otherwise I will lose my job.” He did not agree to do this.
(k) He has 18 years driving experience and has never had his licence suspended.
The claimant gave evidence at the assessment. He confirmed that he was in the right hand lane of two lanes travelling in a southerly direction on Pitt Street. He described Pitt Street as a long straight road. He had been travelling along Pitt Street for three or four minutes before the accident. He had visibility of the traffic lights for a long way. He did not see the lights change to any other colour as he travelled along Pitt Street. He saw a vehicle make a left hand turn from Pitt Street into Walpole Street prior to him reaching the intersection. He was adamant that he had a green light as he entered the intersection. After the accident the damage he observed was to the left passenger side and left front of his vehicle and the right front and driver side of JR’s vehicle. He said that he was half-way into the intersection when the accident occurred. When he spoke to his property damage insurer after the accident he told them that JR was on his mobile phone when the accident occurred and that JR had proceeded through a red light. He told the property damage insurer that JR was at fault for the accident. At the assessment the claimant initially seemed to maintain that JR was on his mobile phone when the accident occurred. However, he confirmed in his evidence that he did not see JR prior to the accident. He confirmed that the first time he saw JR was after the collision. It was at this time he saw JR with his mobile phone in his left hand.
The claimant also gave evidence in relation to a telephone call he received from JR after the accident. He said that during the call JR stated that he wanted the claimant to say that the claimant was at fault for the accident. He says that JR was concerned about losing his job if the claimant did not admit fault. The claimant gave evidence that JR said to him ‘accept your fault’.
The claimant relies on statements from his wife, Parvaneh Berangi, dated 14 May 2020 and 23 June 2021. Mrs Berangi gave evidence at the assessment through a Farsi interpreter. Neither statement contains certification from an interpreter confirming that the contents were translated to Mrs Berangi before she signed the statement. In her statement of 23 June 2021 Mrs Berangi states that the contents of that statement had been translated to her and that she understood the contents of the statement. When questioned at the assessment about whether she can read English, Mrs Berangi confirmed, through a Farsi interpreter, that her “language skills are weak”. She stated that someone may have read the statements to her before she signed them. I accept that the statements reflect her evidence in relation to the accident.
In her 14 May 2020 statement Mrs Berangi confirmed that she was the front seat passenger in the vehicle driven by her husband when the accident occurred. She confirmed the date, time and location of the accident. She stated that as their vehicle approached the intersection of Pitt and Walpole Streets they were faced with a green traffic signal and that they proceed through the intersection. The collision occurred as they reached the centre of the intersection. Prior to entering the intersection the path in front of them remained clear and the traffic light green. Immediately before the collision she saw a flash of white.
In her statement of 23 June 2021 Mrs Berangi confirmed that she was faced with a green traffic signal immediately prior to the accident. She stated that immediately after the accident she noted that the driver of the other vehicle was holding a mobile phone in his left hand.
At the assessment Mrs Berangi confirmed that she was the front seat passenger of the vehicle driven by her husband when the accident occurred. She thought JR was at fault for the accident. She gave evidence that JR was holding his mobile phone in his left hand when she saw him after the accident. Mrs Berangi confirmed that she did not see JR until after the accident.
Mrs Berangi also gave evidence about the telephone conversation between her husband and JR following the accident. Her evidence is that JR attempted to convince her husband to accept responsibility for the accident. She says he did this because he was concerned that he would lose his job. Mrs Berangi confirmed that while she had heard her husband talking to JR, she could not hear what JR was saying. She confirmed that her understanding of the telephone conversation was based on what her husband told her after the call.
The insurer relies on statements of JR dated 13 February 2020 and 8 July 2021. JR gave evidence at the assessment by telephone.
In his 13 February 2020 statement JR states, relevantly:
(a) He was travelling from Holroyd towards Chullora following his GPS.
(b) He was not using his mobile phone or his vehicle’s console.
(c) Prior to the accident he was stationary as the traffic lights facing him were red.
(d) His was the first vehicle at the intersection. He was waiting to turn right onto Pitt Street.
(e) When the lights facing him turned to green he began to move forward to make a right hand turn.
(f) He recalled seeing a truck turn left from the left lane in Pitt Street onto Walpole Street.
(g) As he was making a right turn he saw a vehicle coming through in the right lane on Pitt Street to his right.
(h) He immediately applied his brakes but could not stop. There was a collision between the two vehicles.
(i) The collision occurred in the middle of the intersection.
(j) He told the other driver that he (JR) had the green light and the other driver the red light.
(k) Damage to his vehicle was to the front right. Damage to the other vehicle was to the front left.
(l) After the accident he called his partner and father to tell them what had happened.
(m) He contacted the claimant by telephone after the accident. The claimant was apologising during this conversation.
JR’s 8 July 2021 statement records, relevantly:
(a) He was stationary at the intersection of Walpole and Pitt Streets for a lengthy period of time before the signal changed from red to green.
(b) He commenced his right hand turn after the signal changed to green.
(c) He saw the claimant’s vehicle after he commenced the turn. Despite applying his brakes he was unable to prevent the collision.
(d) He was concerned that other vehicles would collide with him given the position in the intersection of the two vehicles and that Pitt Street is a busy main road.
(e) After the accident he was hyperventilating and was in a state of shock. He reached for a cigarette in an attempt to relieve the stress of what had transpired.
(f) He saw the claimant inspect the damage to the claimant’s vehicle before walking over to his car.
(g) The following conversation is recounted
Other Driver: “Are you sure you want to have a cigarette mate, your
hyperventilating”
Me: “Yes you just hit my car…”
Other Driver: “Mate I’m sorry”
Me: “What the were you doing…Why were you running a red
light”
(h) During the conversation with the claimant JR reached for his phone which was on a dock mounted on the vehicle. His phone has Bluetooth connectivity which means he never has to have the phone in his hands when driving.
(i) He was not on his phone at the time of the accident.
(j) He subsequently lodged a property damage claim with his insurer, NRMA. He was not required to pay an excess.
At the assessment JR gave evidence that he had been stationary at the intersection facing a red light for some time. He did not recall how long. When the light turned green he proceeded to turn right into Pitt Street and the accident occurred.
He denied holding his mobile phone as he proceeded through intersection. He gave evidence that it was in a dock in his car. He picked up the phone after the accident. He recalled being in shock at the scene. He called his partner who came to get him together with his sister. He was not charged by police. He said that the claimant apologised to him at the accident scene. No infringement notice was issued to him by the police. JR gave evidence that there were some matters he could not recall given the time that had passed since the accident occurred.
He confirmed that he spoke to the claimant by telephone after the accident. He called the claimant because he was experiencing an issue with his property damage insurer, who would not provide him with a hire car. He needed the hire car to run his business. The insurer would not provide the hire car because the claimant had provided a version of the accident whereby JR was at fault. He wanted the claimant to know the problems he had caused by giving that account, which was wrong. His evidence was that the claimant said, “sorry mate”.
JR gave evidence that the claimant had lied about what had happened. JR denied the account given by the claimant’s wife.
A Police report dated 6 March 2020 confirms the time, location and parties involved in the accident. There is no narrative of the accident contained in the report.
The insurer relies on a light phasing report for the intersection of Pitt and Walpole Streets from Roads & Maritime Services dated 21 May 2020. The report states that the sequence and timing of the light phases is variable. The exact phase times or sequences on the day of the accident cannot be determined. There are four phases at the intersection. Phase D has been removed from the sequence and is not normally introduced. Phase A allows traffic to proceed north and south on Pitt Street and turn left into Walpole Street to proceed east. Northbound traffic on Pitt Street is permitted to turn right into Walpole Street across opposing traffic with driver discretion. Phase B allows traffic to proceed north on Pitt Street and turn right into Walpole Street to proceed west. Westbound traffic on Walpole Street is permitted to turn left into Pitt Street to proceed south. Phase C allows traffic on Walpole Street to turn left and right into Pitt Street to proceed south and north, respectively. Southbound traffic on Pitt Street is permitted to turn left into Walpole Street to proceed east. The report states that any phase that has no demand will not be introduced except for A phase, which is always introduced. If no demand existed for other phases the intersection will remain in A phase.
The evidence demonstrates that both vehicles were covered by separate NRMA property damage policies. Each driver made a claim on their own NRMA policy and was allocated a separate claim number. Documents on each NRMA file refer to the person making the claim as the ‘insured’, meaning the person insured.
The claimant relies on the NRMA property damage claim file in relation to his vehicle. The file contains photographs of the claimant’s vehicle. There are neither statements nor versions of the accident contained in this material.
The insurer relies on the NRMA property damage claim file for JR’s vehicle. Included in this material is an NRMA Incident Description form dated 25 September 2019. Therein JR provided the following description of the accident:
“…I turned right as I had a green light to do so. The car that hit me ran his red and collided into the front right hand side of my car”
No other versions of the accident are contained in JR’s NRMA property damage file.
JR’s NRMA file includes photographs of the vehicles where they came to rest after the collision. The photographs depict damage to the front driver’s side of JR’s vehicle and the front passenger side of the claimant’s vehicle.
The claimant relies on two photographs taken at the accident scene[1]. Like the photographs contained in JR’s NRMA property damage file, these photographs depict the two vehicles where they came to rest after the collision.
[1] [A2]
A file note from the insurer[2] contains the following account of the accident provided by the claimant by telephone on 20 March 2020:
“He said our insured was on his cell phone during accident.
He said that our insured recognise it was his fault at the start but then changed his mind after the Claimant' wife called the police, the our [sic] insured refused to accept fault. The Claimant advised that everyone said our insured was at fault and that our insured's comprehensive insurer paid the Claimant as his car was written off, the insurer found our insured to be at fault. The Claimant advised that our insured called him and said he was at fault in the accident.
He said his traffic light was green and the other driver ran a red light.
He said that he could not see what was coming from the left as a big car was next to him but our insured 100% passed the red light…
He said that our insured was funny and kept changing his mind.
He is certain that he did not pass red light and that the other guy did…”
[2] [R5]
Claimant’s submissions
The claimant relies on written submissions dated 24 April 2020, 25 June 2021, 19 July 2021 and 10 August 2021. The thrust of the claimants submissions is as follows:
(a) The insurer carries the onus of proving that the accident was caused wholly by his fault.
(b) Contrary to JR’s evidence the photographs[3] establish that his vehicle collided with the claimant’s vehicle.
[3] A2
(c) The length of JR’s statement is not material with respect to the accuracy of the statement.
(d) The light phasing report is of limited value given the RMS was unable to determine the exact phase times or sequences that occurred on the day of the accident.
(e) The claimant’s version of events is consistent with phase A being in operation at the time of the collision.
(f) If phase C was in operation at the time of collision, it would mean that the traffic control light would have been red through phase B before going to phase C. This means that the light would have been red for a long period. On such a relatively busy road, had this been the case, it is likely that there would have been other vehicles in front of the claimant stopped at the red light.
(g) The photographs of the claimant’s vehicle contained in the property damage file do not show the damage to the car panels as they were taken after the panels had been removed, however they show:
(i)The passenger’s side front mudguard has been removed.
(ii)The damage is very much on the passenger’s side of the vehicle.
(iii)Damage as far back as just in front of the front passenger door hinges.
(h) The damage shown in the photographs contained in the property damage files is consistent with the claimant’s version as to the point of impact on his vehicle.
(i) JR entered the intersection driving through a red light. He is therefore wholly at fault.
(j) The claimant’s evidence should be preferred because:
(i)It was given in a straightforward manner and has not altered from the evidence given in his written statements. The same applies to the evidence given by his wife.
(ii)He was cross examined as to his belief that the insured was using his mobile phone at the time of the accident. He was asked why this allegation was not in his first statement. However, this allegation was made to the insurer before the claimant made that statement. In the documents annexed to the Internal Review Decision is a written note of a conversation with the claimant that took place on 20 March 2020. It is recorded that the claimant said, among other things:
1.JR was on his cell phone during the accident.
2.JR recognised it was his fault at the start but then changed his mind.
3.His traffic light was green and the other driver ran a red light.
(k) However, the claimant and his wife both conceded that they did not see the insured using the phone prior to the collision, but say they saw the insured with the phone in his hand straight after the collision.
(l) Further, the claimant’s description of how the impact occurred, i.e. what parts of the vehicles impacted has been proven correct by the photographs within the property damage file and lodged in the insurer’s case.
(m) JR’s evidence should not be accepted because it was inconsistent, exaggerated and inaccurate. In this regard:
(i)He said that after the accident he was shocked and was hyperventilating. He conceded that he could not really remember what conversations took place after the accident, although his statements contain versions of conversations.
(ii)In his statement of 13 February 2020, he said at paragraph 60 “As I saw this vehicle, I immediately pushed on the vehicle’s brake pedal however I could not stop and the vehicle coming through collided with my vehicle”. Further, in his statement of 8 July 2021, he refers to having been T-boned by the other vehicle (paragraphs 31 and 33). When asked in cross examination what he understood this expression to mean he was somewhat vague, but he went on to say that the point of impact to the claimant’s vehicle was to the front of the vehicle whilst the impact to his vehicle was to the driver’s side of the vehicle. This is clearly not the case. Photographs show damage to the front of the insured’s vehicle and damage to the passenger side of the claimant’s vehicle, over the front mudguard.
(iii)JR’s version of what happened immediately after the accident is inconsistent. At paragraph 64 of his first statement, he said “The other driver, who was male, came out of his vehicle to check up on me” (this accords with the claimant’s version). But at paragraph 16 of his second statement, he says “The other driver, who was male, initially exited his vehicle, and inspected the damage that had been sustained to his vehicle”.
(iv)In his second statement, JR conceded that shortly after the accident, he had his phone in his hand (paragraph 22) but at paragraph 25 he says that he was not on his phone at the time of the accident and he would endeavour to obtain his phone records. He made no attempt to obtain such records.
(v)Further, JR said that he had a telephone conversation with the claimant on the date of the accident and never spoke to him again after the date of the accident (paragraph 88). The claimant says that there was a telephone conversation with the insured a day or two after the accident. To some extent, both versions of the conversation are similar, that is, that because the claimant was claiming to be in the right, the insured’s property damage insurer would not provide him with a replacement vehicle so he could not carry on his business. It is submitted that due to the contents of this conversation, it is highly unlikely that the conversation took place on the day of the accident.
(n) Both the light phasing report and the police report are of little assistance.
(o) The account given by the claimant and his wife is more creditable than that given by JR. The claimant’s version should be accepted.
Insurer’s submissions
The insurer relies on written submissions dated 21 May 2020, 9 July 2021 and 19 August 2021. The insurer submits that:
(a) The claimant’s actions alone were the sole cause of the motor vehicle accident.
(b) The photographs clearly depict impact to the front passenger’s side of the claimant’s vehicle not the passenger door. The Police report confirms impact to the “front to driver side” of the claimant’s vehicle.
(c) JR did not act negligently in the accident. The actions of the claimant in colliding with JR’s vehicle while he had a green light and was turning from a side street gave JR no opportunity to avoid the collision. JR’s vision was restricted by the truck turning left from Pitt Street onto Walpole Street. This would have restricted JR’s ability to see the claimant’s vehicle approaching.
(d) The traffic light phasing report establishes that there were three operational phases, being A, B and C. Whilst phase D existed, it had been removed from the sequence and was not normally introduced.
(e) For the claimant’s version to be accepted, phase A must have been activated.
(f) For JR’s version to be accepted, phase C must have been activated.
(g) If it is accepted that phase C was activated, it is also plausible that what the claimant observed was a green left hand turn arrow at the intersection, as opposed to a green light permitting him to proceed through the intersection.
(h) Whilst JR could also have been confused by the presence of a green arrow for traffic turning left from Walpole Street onto Pitt Street (phase B), during this phase, both the claimant and the left hand turning truck would have been confronted with a red light. Accordingly, it is highly unlikely phase B was activated at the time the insured entered the intersection.
(i) Having regard to all of the evidence, phase C was activated at the time the insured entered the intersection.
(j) The claimant has consistently stated that the front of the insured vehicle collided with the side of his vehicle. Whilst the insurer accepts that was the resting position of the vehicles, it is submitted the initial contact was between the front of the claimant’s vehicle and the driver’s side of the insured vehicle, consistent with the substantial front end damage to the claimant’s vehicle.
(k) With respect to the claimant’s allegation that the insured had his phone in his hand immediately after the collision, there was no reference made in the claimant’s original statement to the insured holding a mobile phone at the time of the collision. It would be expected, given the significance of this evidence, that the claimant would have made reference to this in his original statement.
(l) The insured admits speaking to the claimant following the collision and refers to this conversation at paragraph 83 of his statement dated 13 February 2020. However, he denies the content of the claimant’s recount of that conversation.
(m) Any suggestion the claimant should admit fault was because of JR’s belief the claimant was at fault and not, as suggested by the claimant, to avoid losing his job. JR was self-employed. There was no risk of him losing his job.
(n) In circumstances where neither the claimant nor JR were required to pay an excess for the damage sustained to their respective vehicles, the fact the claimant did not pay an excess is largely irrelevant to the dispute, particularly noting NRMA was the property damage insurer of both vehicles.
(o) JR has provided a consistent version of events from the outset. He has not lodged a CTP or compensation claim arising out of the accident and has no financial interest in the outcome of the determination.
(p) The insurer does not suggest the claimant knowingly entered the intersection against a red light but does say that, at the time the claimant entered the intersection, the traffic signal for through traffic on Walpole Street was red and in phase C.
(q) The claimant was mistaken in his belief that he had a green light and this mistake arose in the context of the left hand turn lane of southbound traffic on Pitt Street displaying a green light to turn left.
(r) The lights could only have been in phase A or C. The insurer submits that when the insured arrived at the intersection, they were in phase A. When they changed, to enable the insured to proceed, phase C was activated.
(s) While the onus of proof rests with the insurer, the evidence discharges that onus and supports a finding that the claimant was wholly at fault for the accident.
(t) The evidence of the claimant and his wife would not be preferred due to the inconsistencies in their evidence and their self interest in the outcome.
(u) There are significant differences between the content of the claimant’s statements, in that the first statement is absent any reference to the assertion that JR had his mobile phone in his hand following the accident or that JR, in a conversation that took place between him and the claimant following the accident, attempted to coerce the claimant into accepting fault so that he would not lose his job. The evidence of the claimant and his wife during the course of the assessment conference introduced further inconsistencies.
(v) The claimant’s evidence would not be preferred over that of the insured given the inconsistencies in his statement. With respect to the telephone conversation that took place between the claimant and the insured following the accident, it is submitted the claimant’s evidence in this regard is fabricated and not true.
(w) The evidence that differentiates the two versions and supports JR’s version of events is his evidence of having come to a stationery position at the intersection, waiting for the light in front of him, which was red, change to green.
(x) There is no explanation as to why JR would have initially come to a stop and, on his evidence, waited for a period of time before the lights turned green, to then enter the intersection when the lights were red.
(y) The claimant and his wife gave evidence that over their entire approach to the intersection the traffic lights remained green. The evidence is that the claimant had an unobstructed view of the intersection of more than 100 metres. It is the insurer’s submission that over the claimant’s approach, the traffic light phasing changed and, as he approached the intersection, entered into phase C.
(z) In the absence of demand for phase B, the phasing would have moved directly to phase C.
(aa) There is no evidence of any vehicle or pedestrian in the vicinity to activate B phase. Accordingly, the insurer refutes the submission made by the claimant that B phase would have been activated and says the timing and evidence is consistent with the lights being in A phase but then changing to C phase on the claimant’s approach to the intersection and after the insured had been stationary, waiting for the lights to change, over a period of time.
(bb) The assertion that JR was using his mobile phone at the time of the accident is disputed. There is no evidence that he was seen to be on his phone prior to the collision. The claimant criticises JR for not securing his phone records. The insurer submits they would be of no assistance in determining the dispute noting JR’s evidence that his phone was fitted with a Bluetooth service, permitting his use of a phone. Without the precise time the accident occurred it would not be possible to prove whether he was on his phone or not.
(cc) The criticism of JRs description of the nature of the accident and the damage to the vehicles is, in the circumstances, irrelevant to the dispute. Whilst JR conceded the accident was not a true ‘T-bone’ collision, his vehicle was impacted by the claimant’s vehicle in circumstances where he says he was initially in shock. The insurer submits that without expert evidence, no conclusion as to which vehicle impacted with the other can be drawn and, furthermore, it is largely irrelevant to the dispute.
(dd) Very limited weight would be given to the evidence of the claimant’s wife given she could not confirm the content of her original statement and due to her poor English was reliant on second-hand information being provided by her husband. Further, her evidence was not consistent with her husband’s in a material respect and was largely self-serving and should be given little to no weight.
Determination
The critical factual dispute upon which the outcome of these proceedings turns is whether the claimant was faced with a green traffic signal as he entered the intersection of Pitt and Walpole Streets. If he did, JR must have made a right hand turn from Walpole Street into Pitt Street when faced with a red traffic signal.
If, on the other hand, JR was faced with a green traffic signal as he made his right hand turn the claimant must have been faced with a solid red traffic signal.
The light phasing report is of limited assistance in resolving the factual dispute. It simply serves to reinforce the position that if one of the drivers had a green traffic signal facing them the other was faced with a solid red signal. Both drivers could not have had solid green traffic light facing them.
The claimant argues the lights were in phase A. The insurer argues that they were in phase C. Both the claimant and JR gave evidence that prior to the accident a vehicle traveling south on Pitt Street turned left onto Walpole Street from the left lane. This evidence is consistent with lights being in either phase A or phase C as both phases permit southbound traffic on Pitt Street to turn left into Walpole Street to proceed east.
The claimant submits that the damage to the vehicles depicted in the photographs is consistent with his evidence as to the point of impact on both vehicles. The insurer argues that the photographs clearly depict impact to the front passenger’s side of the claimant’s vehicle not the passenger door, noting JR’s vehicle is in front of the claimant’s passenger side wing mirror.
I agree with the insurer’s submission that without expert evidence no conclusion as to which vehicle impacted with the other can be drawn from the photographs and, furthermore, it is largely irrelevant to the dispute. The photographs do not assist me when it comes to determining the factual dispute in relation to the traffic lights.
I do not agree with the claimant’s submission that if phase C was in operation at the time of collision it would mean that the traffic control lights would have been red through phase B before going to phase C. The RMS report states that any phase that has no demand will not be introduced except for A phase, which is always introduced.
As submitted by the insurer, there is no evidence of any vehicle or pedestrian in the vicinity to activate B phase. In the absence of demand for B phase the phasing would have moved directly to phase C given that there was demand for that phase.
I am satisfied that JR was not using his mobile telephone as he was driving through the intersection. There is no direct evidence that he was. While the claimant initially asserted that JR was on his mobile phone when the accident occurred, he conceded in his evidence at the assessment that he did not see JR until after the accident. JR gave evidence that he had his mobile phone in a cradle in his vehicle. His evidence is that he was not using his phone as he made the right hand turn and that he picked up his phone to make a call after the accident.
The claimant’s initial insistence that JR was using his mobile phone while proceeding to make a right hand turn has led me to the conclusion that he has re-constructed events after the accident.
I found that Mrs Berangi’s recollection of the accident had been influenced by her view that JR was at fault for the accident because he was using his mobile phone as he made the turn into Pitt Street. She formed this view despite agreeing in her evidence that she did not see JR at any time before the collision and that she saw him for the first time after the collision. I concluded that she too had reconstructed events after the accident.
Further, given the apparent significance to her that JR was on his phone as he entered the intersection, it is difficult to understand why that evidence was not included in her first statement of 14 May 2020.
In terms of the telephone conversation between the claimant and JR after the accident, having heard from the witnesses, I preferred JR’s account of the conversation. Mrs Berangi’s evidence in relation to this conversation was coloured by the account provided to her by the claimant. She did not hear what JR said during the phone call. That then left the evidence of the claimant and JR. I found it more probable than not that JR called the claimant because the claimant had informed the property damage insurer that JR was at fault, and this resulted in the insurer refusing to provide JR with a hire car. I found that it was more probable than not that JR called the claimant because he considered the claimant had provided an inaccurate version of events and he wanted the claimant to ‘correct the record’. At the end of the day, when the conversation took place, and what was said, were not critical considerations when it came to resolving the factual dispute between the parties in relation to the traffic lights.
The claimant submits that JR’s evidence was inconsistent, exaggerated and inaccurate. The claimant submits that JR’s evidence that the telephone call with him occurred on the day of the accident is an example of his inaccurate evidence. I note, however, that the claimant gave evidence in his statement of 23 June 2021 that he couldn’t remember whether this call occurred on the same day as the accident or the next day.[4]
[4] At [20].
JR’s concessions in his oral evidence that there were some matters he did not recall due to the passage of time did not, to my mind, diminish the reliability of his evidence.
I am not persuaded that debates about what constitutes being ‘T’ boned, in the context of these proceedings, assist in resolving the critical factual dispute. I do not consider that JR’s use of the term ‘T’ boned to describe the accident detracts from the reliability of his evidence that he made a right hand turn after the traffic lights facing him changed from red to green.
Ultimately, I preferred JR’s evidence to that of the claimant and his wife. I did not find his evidence to be exaggerated. His contemporaneous account, contained in the NRMA Incident Description form dated 25 September 2019, provided six days after the accident, records that he turned right when faced with a green light. This version of events is consistent with the version contained in his written statements dated 13 February 2020 and 8 July 2021 and his oral evidence.
While I accept JR’s evidence that he made a right hand turn after the traffic lights facing him changed from red to green, I am not satisfied that the evidence of the claimant and his wife in relation to the traffic lights is intentionally false. The impression I formed was that they each believed that their evidence was correct. However, I have concluded that the claimant and his wife have reconstructed events. Their initial insistence that JR was on his mobile phone when the accident occurred despite seeing him for the first time after the accident gave rise to doubt in my mind as to the reliability if their evidence.
I find that prior to the accident JR’s vehicle was the first vehicle at the intersection on Walpole Street waiting to turn right onto Pitt Street.
I find that JR had been stationary at the intersection facing a red light for some time.
I find that it is more probable than not that JR commenced a right turn into Pitt Street after the traffic signal facing him changed from red to green.
I do not think it is probable that, having waited at the intersection with a solid red light facing him, JR proceed to make a right turn while the light remained red.
I find that at the time both drivers entered the intersection the lights were in phase C.
I find that the claimant was faced with a solid red traffic signal as he entered the intersection.
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: McHugh J Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path: Manley v Alexander [2005] HCA 79 at [11].
I have found that the claimant proceeded into the intersection with a solid red light facing him. I find that this constitutes a breach of the duty he owed other road users including JR. I find that the accident was caused by the fault of the claimant.[5]
[5] ‘fault’ is defined in s 1.4 of the MAI Act as ‘negligence or any other tort’.
JR proceeded to make a right turn into Pitt Street after the traffic signal facing him had changed to green. The claimant entered the intersection facing a solid red traffic signal. In these circumstances I am not persuaded that JR breached the duty he owed other road users.
It is not submitted by either party that the accident was caused by the fault of any person other than the claimant or JR. Having found that the accident was caused by the fault of the claimant and no other person I find that the accident was caused wholly by the fault of the claimant.
Costs
The claimant seeks an order under s 8.10(4)(b) permitting payment of his costs on the basis that exceptional circumstances exist. The claimant submits that exceptional circumstances exist for the following reasons:
(a) The challenging nature of the dispute involving a contested factual issue required exceptional attention in seeking and analysing various forms of evidence, numerous lengthy discussions in relation to evidence, obtaining statements, attending an assessment, engaging in examination and cross examination of multiple witnesses and providing numerous sets of submissions.
(b) Whereas most matters can be determined ‘on the papers’, this matter required an oral hearing with witnesses giving oral evidence and being cross examined.
(c) Each party filed two statements and multiple sets of written submissions.
(d) The dispute required an extraordinary amount of work compared to a standard PIC application.
The claimant seeks an order that the insurer pay his costs in the sum of $10,000 plus GST.
The insurer submits that despite there being opposing views in relation to the issue of liability, there was relative agreement as to the events that occurred. The only issue to be determined was whether the claimant had a green light when he entered the intersection. The matter did not require extensive factual investigations or the commissioning of expert evidence. The Application and Reply contained submissions from both parties which were supplemented with additional written submissions. To submit, as the claimant does, that the provision of two statements and two sets of written submissions make the matter exceptional would mean that almost every case would be found to be exceptional.
The insurer submits that the fact the claimant chose to engage counsel and to incur legal costs outside the legislative framework does not make the case exceptional. The objectives of the MAI Act must be borne in mind when determining issues in relation to costs. By awarding exceptional costs merely because there is a dispute which proceeded to a face to face hearing does not meet those objectives.
In AAI Limited t/as GIOv Moon [2020] NSWSC 714 Wright J held at [97] that when regard is had to s 8.10(4), the power to permit payment of legal costs can be seen as designed to deal with particular, unusual situations where the maximum costs fixed by the regulations may not be adequate. His Honour observed at [99] that:
“other cases can be envisaged which are exceptional, because they involve an unusual degree of factual or legal complexity or for some other reason, and this requires the incurring of more substantial legal costs by a claimant. These cases fall within s 8.10(4)”.
I am not satisfied that the issues in these proceedings represented a departure from the norm. Nor am I satisfied that the issues were unusual or out of the ordinary. The matter did not involve, in my assessment, an unusual degree of factual or legal complexity. There is no other reason that satisfies me that exceptional circumstances exist. In the circumstances I am not persuaded that an order should be made by the Commission in accordance with s 8.10(4)(b).
The regulations fix the maximum costs recoverable by a claimant in a miscellaneous claims assessment matter in the amount of $1,660. I find that the sum of $1,660 plus GST represents the claimant’s reasonable and necessary legal costs in connection with this miscellaneous claims assessment matter in accordance with the regulations. Those costs are payable by the insurer.
Brett Williams
Member (Motor Accidents Division)
Personal Injury Commission
0
3
0