Mayer v Insurance Australia Limited t/as NRMA
[2023] NSWPIC 524
•5 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Mayer v Insurance Australia Limited t/as NRMA [2023] NSWPIC 524 |
| CLAIMANT: | Alexander Mayer |
| INSURER: | Insurance Australia Limited trading as NRMA |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 5 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims dispute as to whether the claimant was wholly at fault for the purposes of sections 3.11 and 3.28; very divergent version of events; claimant alleges the insured driver reversed from a carpark onto the roadway in Mullumbimby NSW; insured version, and the version from an independent witness, is that the insured was stationary in a line of traffic when the claimant collided with the rear of his vehicle; Held – claimant found to be wholly at fault; rejected suggestion from claimant’s legal representative that “collusion” had occurred between insured and independent witness; evidence did not support the claimant’s version of events. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 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 s 3.28 the motor accident was caused mostly by the fault of the injured person 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $0. |
STATEMENT OF REASONS
INTRODUCTION
Mr Alexander Mayer (the claimant) is a 45-year-old male who suffered injury as a result of a motor accident that occurred on 12 January 2023. A dispute has arisen pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act) as to whether the claimant was mostly at fault for the accident.
The claimant lodged an Application for Personal Injury Benefits (the claim form) on or about 16 February 2023 with the insurer of the vehicle he considered to be at fault.
The accident occurred in the town centre of Mullumbimby, in Northern NSW. The version of events between the claimant and the insured driver are very much divergent. Briefly, the claimant alleges the insured driver reversed out of a carpark onto the roadway where the claimant was driving. The claimant alleges he had no opportunity to avoid colliding with the rear of the insured vehicle.
The insured driver, on the other hand, asserts he was stationary in a line of traffic when the claimant collided with the rear of his vehicle.
Liability for payment of statutory benefits was initially accepted by the insurer. However, by notice dated 18 May 2023 the insurer denied liability for ongoing statutory benefits after 26 weeks. The insurer indicated that they considered the claimant to be wholly at fault for the accident.
The claimant requested an internal review of the decision. The internal review dated 8 June 2023 affirmed the original decision.
The claimant subsequently lodged an application with the Personal Injury Commission (Commission) for determination of the dispute.
I have held a number of teleconferences with the parties. The claimant was originally legally represented, however, later became self-represented. However, the claimant later became legally represented and those representatives remain.
Some time was provided for the parties to obtain property damage reports.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and the reply and all additional material 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 ss 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.
CIRCUMSTANCES OF THE ACCIDENT AND SUMMARY OF EVIDENCE.
Many of the details of the motor accident are in dispute, including the location of the accident. However, there appears no controversy that the accident occurred within the town centre of Mullumbimby at approximately 10.30am. The day was clear and sunny.
The claimant was the driver of a grey Ford Kluger, and the insured driver was driving a black Ford Ranger utility.
There are a number of photographs before me within the evidence. Those photographs demonstrate extensive damage across the front end of the claimant’s vehicle. There is some minor damage to the back of the insured vehicle.
Claim form
The claimant provided a version of events in the claim form as follows: “A car reversed out suddenly and I ran into car.” He does not provide details as to the location of the accident.
Byron Bay Hospital records
The insurer relies upon the clinical file of the Byron Central Hospital. Essentially in respect of the description of the accident. The discharge referral notes that the claimant recounted that a vehicle pulled out in front of him and he “T boned” the other vehicle.
Statement of the claimant dated 8 March 2023
This statement was obtained by M & A Investigations who were instructed by the insurer to investigate the accident.
The claimant states that he had not consumed any alcohol, drugs and prescription drugs in the 24 hours prior to the accident.
He states the accident occurred on Burringbar Street, just east of the intersection of Dalley Street. He had left his home in Mullumbimby to buy items at IGA in Mullumbimby. He left there and drove in a westerly direction along Burringbar Street at a speed of 40kmph at most. He had an intention to turn right into Dalley Street. He notes there was angled parking to his left.
He then states from paragraph 35:
“As I was about five or ten metres from the intersection of Dalley Street, a vehicle parked in the last of the angled car spaces closest to Dalley Street, backed out into my path of travel without any warning.
I estimate I was right on top of where he backed out of and I didn’t even have time to hit my brakes or take any evasive action. I couldn’t say if the reversing vehicle was still moving backwards when my vehicle collided with the back of it.
The force of the impact of the crash if one is the minimum and ten the maximum was strong enough for my airbags to be deployed and enough to push the other car into the intersection of Dalley Street.”
The claimant states that both he and the insured driver moved their cars off the road and exchanged particulars. His vehicle was towed from the scene and was “written off.”
The claimant states he received a letter from the insured driver’s property damage insurer which stated the accident occurred in Station Street, which the claimant states is incorrect.
He explains that he received a $15,000 payout from his comprehensive insurance policy with Real Insurance, and he was informed that he did not need to pay an excess as the other driver was in the wrong.
Statement of the insured driver, Mr Dane Tomas dated 15 March 2023.
This statement was also obtained by M & A Investigations.
The insured is 44 years of age and employed as an education mentor.
He notes that he has received several speeding fines in the past five years and his licence was suspended for three months in 2018 for an accumulation of demerit points.
He states that he had not consumed alcohol, drugs or prescription drugs prior to the accident and he was not fatigued, describing himself as having been well and alert. He states he had eight hours of sleep.
He drove to Mullumbimby town, with an intention to meet a friend at a café.
The insured explains that he was driving along Dalley Street, with an intention to turn right at Burringbar Street. He describes there being a lot of traffic and pedestrians at that time of the morning.
From paragraph 36 the insured states as follows:
“I was about the third or fourth car back from the intersection of Burringbar Street, waiting to turn right into Burringbar Street, as were the cars in front of me, where the café I was going to was.
I estimate I was stopped for at least two minutes, as there were people using the crossing and the traffic coming the other way was constant.
I was wearing my seatbelt, I was in my vehicle by myself, and I was not distracted by anything.
I was looking ahead with my foot on the brake or in park.
I felt an intense impact from behind and realized a car had crashed into the rear of my vehicle.
My vehicle didn’t really move forward from the impact as it was bigger than the one that hit me from behind.”
The insured states that the claimant’s vehicle was pushed to the left side of Dalley Street by the claimant and a few other people that assisted.
The statement contains comments in respect of the insured driver’s perception of the claimant being under the influence of “something.” I have paid no regard to such portion of the statement. The insured is not qualified to make an assessment of the claimant’s sobriety, and I have no objective evidence that would support any such allegations.
A claim was submitted by the insured with his property damage insurer, Suncorp. He explains that he did not have to pay an excess as the claimant was considered to be at fault.
A person approached the insured driver and identified themselves as David Macsweeney. Mr Macsweeney provided the insured with his phone number and is said to have indicated that he saw the accident.
The investigation report includes a copy of a photograph said to have been provided by the insured driver. The photograph depicts a man to the left of the claimant’s vehicle which is parked at an angle on a street.
The description under the photograph includes the investigators note that the photograph is crucial as it depicts a telephone box in the top right of the photograph. It is said that such telephone box is on the western footpath of Dalley Street, approximately 30-40 metres south of the intersection of Burringbar Street.
Photograph “16” within the investigation report includes a Google Earth street view of Dalley Street facing north. It depicts a telephone box on the western side of Dalley street and it and the surrounds correspond with the photograph that includes the claimant’s vehicle as described above.
Statement of David Macsweeney dated 16 March 2023
This statement was also obtained by the investigators.
Mr Macsweeney is 53 years of age and employed as a concreter and tradesman. He resides in Victoria and explains that he was holidaying on the North Coast at the time of the accident.
He was in Mullumbimby with a friend. He states from paragraph 16:
“I wasn’t familiar with the street names, but after looking at a Google map, I can identify that my mate and I were walking in a northerly direction along Dalley Street on the eastern footpath, about twenty to thirty metres south of the intersection with Burrinbar Street.
I recall it was a sunny clear day.
It was approximately 10.30am and I noticed there was a line of cars stopped in line just before a pedestrian crossing across Dalley Street. There was a pub on the corner.
I heard a large crash of metal and immediately looked to where the sound came from to my left.
There was a grey SUV which had crashed into the back of the last car in the mentioned line of stopped vehicles in the northbound lane of Dalley Street.
The SUV had hit he rear of a black coloured UTE which was larger than the SUV. The black coloured UTE was about the third or fourth car in the line of stopped cars.”
The witness also makes comments in respect of the claimant being under the influence. Again, for the reasons expressed above, I have paid no regard to such comments.
Mr Macsweeney states that “we” pushed the SUV to the left side of the roadway. He explains that he has been provided a copy of a photograph which depicts the claimant. He states that the photograph shows the claimant next to the SUV that the witness pushed from its position in Dalley Street northbound, across the road to the left to an angled parking spot.
Mr Macsweeney also provided to the investigators a signed Google Earth street view of Dalley Street, showing Dalley Street and the area where he had helped push the claimant’s vehicle.
He states that after the accident he approached the insured driver and provided his details. He confirms that he had not met the insured driver prior to such moment.
Other evidence
The property damage insurance file of Suncorp is included. Suncorp being the insurer of the insured driver’s vehicle. The notes have the accident occurring on Station Street Mullumbimby. It is stated in the notes that the insured driver was stationary in a line of traffic when a vehicle collided with him.
The file includes photographs of the damage to the insured vehicle which includes some dents and scratches to the rear of the vehicle.
Also before me is a property damage file relating to the claimant’s vehicle, from Hollard (Real Insurance). The notes in the claim file include the claimant’s description that he was driving forward along the road and “he” reversed out in front and the claimant hit him as he came out of nowhere. The location is described as Australia Post in Mullumbimby.
SUBMISSIONS
Submissions lodged by the claimant with the Application
The claimant, whilst unrepresented provides lengthy submissions with his application.
The claimant has complaints as to the wording of the insurer’s liability notice and their allegations. There are also complaints and submissions as to the attitude of the insurer and their representatives. These submissions do not assist me with my task of determining whether the claimant is mostly or wholly at fault. Whilst they may be legitimate concerns, my determination is based upon the evidence before me that has been briefly summarised above. The insurer’s wording in their liability notice and internal review notice, and their conduct in respect of the management of the claimant’s claim is essentially not relevant to the task before me.
In respect of the photographs in the investigator’s report, the claimant states the following in his submissions:
“The photo in the investigator’s report does not explain the true circumstances. When we first pushed my car off the road, it was a busy time of the day and there were no available parking bays anywhere. We pushed my car up towards an area where there was enough space to get it off the road. The problem was however, where we parked the car, it was in front of a driveway that was not a designated parking bay. As per the photo, I was illegally parked in front of the driveway, partially cutting of access to that building. This is visible in the photo on page 48. After we exchanged details at 10:36am, a parking spot directly out the front of Australia Post, near the intersection became available so we pushed my car a few meters up the road where it remained until the tow truck driver arrived at approximately 6:00pm that night.”
The claimant submits that the accident occurred on Burringbar Street, near the intersection with Dalley street. It is submitted that it was far easier after the accident to push the car forwards and left into Dalley Street, into an area near the angle parking, and it was the only available area to park the car at the time.
The claimant provides a letter from Westpac which he contends shows an IGA transaction. He states that five minutes before the accident he was at IGA. He explains that based on his path of travel home, he would not have been travelling on Dalley Street as asserted by the insured driver. He states: “even if it’s suggested that I wasn’t going home, there is still no logical or practical reason or any possible way I could end up at that location, travelling in that direction, after being at IGA just a few minutes prior to the accident.”
The insured’s statement that his vehicle did not really move from the impact is disputed by the claimant who submits that it makes no sense given the force of the impact. The claimant submits that if there were cars in front of the insured then his car would have hit those cars from the impact.
The claimant submits that the insured driver is inconsistent in respect of the location of the accident. In this regard, the claimant refers to a letter from Suncorp that suggests the accident occurred on Station Street. The claimant submits that the insured driver “then changed his story” and told investigators it was Dalley Street.
In respect of the witness, Mr Macsweeney, the claimant states that he suspects the witness is a friend or acquaintance of the other driver. He suggests that the insured driver is possibly lying, perhaps for insurance reasons.
The submissions attach a copy of text messages with the insured driver. There is also a letter from Westpac. It confirms that the claimant made a purchase with IGA Mullumbimby on 11 January 2023 at 10.12am. It was the only transaction on such date.
Insurer’s submissions dated 28 June 2023
The insurer sets out the background of the dispute and summarises the evidence. The insurer goes on to note that the claimant relies on him having been in IGA prior to the accident, and that the claimant relies on the letter from Westpac. The insurer notes that the transaction noted in such letter occurred on 11 January 2023, which is the day prior to the motor accident.
It is submitted by the insurer that the damage to the vehicles is consistent with the insured’s version of events. It is submitted that the claimant failed to keep a proper lookout and keep a safe distance between his vehicle and the insured vehicle.
Claimant submissions of Prominent Lawyers dated 11 August 2023
The submissions note that the insured driver states in his statement that he was travelling to attend The Other Joint Café which is on Burringbar Street. It is noted that this where the claimant has always consistently stated the accident occurred.
The submissions note the insured driver lodged a claim with his property damage insurer, Suncorp on 13 January 2023 (the day after the accident), and “relevantly” there is no mention of a witness. It is rather boldly suggested that once the insured driver received a letter of demand from the property damage insurer of the claimant, “…there now becomes what appears to be the first mention of a witness. It is submitted that in the event that there was a witness, the Property Damage insurer would have been advised of the existence during the initial contact on 13 January 2023.”
Even more boldly, the submission go on to state: “The consistency between the Respondent Driver and the witness statement appears to be a collusion.”
It is submitted that the insurer failed to undertake investigations consistent with the claimant’s version of events, by way of interviewing business’s located where the claimant alleges the accident occurred. I should therefore make an inference pursuant to Jones v Dunkel [1959] HCA 8, 2020 CLR 298.
The submissions also include a copy of a post from what is said to be the insured driver’s Facebook page. It was apparently posted at 1:24am on 12 January 2023. It is submitted that this contradicts the insured’s statement in respect of his sleep.
The submissions then state: “by reasons of the location change, late witness reporting, driving record and similarity between statements, the Claimant alleges that the Respondent Driver is not of good credit and is not a reliable witness.”
FINDINGS AND REASONS
On the basis of the totality of the evidence, I am sufficiently satisfied that on the balance of probabilities the subject motor accident occurred in a manner consistent with the version of events of the insured driver.
The damage to the claimant’s vehicle as depicted in the various photographs demonstrates significant damage, which is generally consistent along the entire front end of the vehicle. I find that such damage is more consistent with the insured’s version of events that he was stationary in a line of traffic and was collided with from behind. I addition, the damage to the insured’s vehicle as depicted in the photographs is consistent with a rear end collision with both vehicle facing in a straight direction.
The claimant’s version is that the insured vehicle reversed out of an angle parking bay into the path of the claimant’s vehicle. If that were the case, noting the damage to the claimant’s vehicle, the insured’s vehicle would have likely had to have completed the manoeuvre out of the parking bay in reverse and have been essentially been facing straight within the roadway prior to the claimant colliding with the rear of the vehicle. The claimant states that the vehicle came out of nowhere. It is inconsistent to suggest that the claimant would not have noticed a vehicle having essentially wholly completed a reversing manoeuvre out of a parking space to his side and suggest the vehicle “came out of nowhere.”
Moreover, the insured’s version of events is supported by an independent witness. When that is considered in conjunction with the photograph of the claimant’s vehicle on Dalley Street after the accident, which the witness confirms is where he pushed the vehicle, I find that the accident did occur on Dalley Street.
I consider it illogical for the claimant’s vehicle to have been pushed around a corner after the accident as suggested by the claimant in his submissions.
Whilst there is a suggestion by the claimant’s solicitors that there has been collusion between the insured driver and the witness, there is no evidence whatsoever that supports such a bold accusation. I take the opportunity to caution the claimant’s representatives against making such serious allegations in the absence of any objective evidence. The claim is made on what appears to simply on the grounds that the versions are consistent between the insured and the witness. I entirely reject any suggestion of a collusion.
The witness resides in Victoria, and the insured driver resides on the North Coast of NSW. I have no reason to doubt the assertion of both the insured driver and the witness that they had not been known to each other prior to the accident.
It is true that the insured driver has a less than desirable driving record, however, that fact is not such that I am convinced that his version of events is untrue.
It does appear that the insured’s property damage insurer has the accident recroded as occurring on Station Street. That does amount to an inconsistency, however, it is not so much of an inconsistency that it negates the corroboration as to the accident location by the independent witness. Furthermore, the record of the property damage insurer, both in the notes and in their letter, is not primary evidence of the insured driver personally. I therefore place little weight to it.
The claimant places considerable reliance on him having made a purchase at IGA in Mullumbimby prior to the accident, in support of his version as to the location of the accident. I place no weight on such submission noting that the transaction relied upon occurred the day prior to the accident.
On the basis of the above I find that the accident occurred as described by the insured driver. As such, it follows that I find that the claimant failed to keep a proper lookout when driving his vehicle, and in doing so has failed to stop in time to avoid a collision with the rear of the insured’s vehicle.
It follows, therefore, that I find that the claimant is wholly (mostly) at fault for the accident.
COSTS
As a regulated miscellaneous claims assessment matter under Schedule 1 cls (3)(2)(d)&(e) of the Motor Accident Injuries Regulation 2017, legal costs may be awarded.
Schedule 1 cl(3)(1) of the Regulation provides that the maximum costs for legal services provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units.
I am not precluded from awarding costs in favour of the claimant merely on the basis that I have found against him. However, I do not consider that on the evidence that there was a reasonable basis for the legal representatives of the claimant to have pursued this dispute. Accordingly, I decline to award costs in favour of the claimant.
CONCLUSION
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
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $0.
0