McGrath v AAMI
[2022] NSWPICMR 39
•14 June 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| Citation: | McGrath v AAMI [2022] NSWPICMR 39 |
| ClaimanT: | Joy McGrath |
| Insurer: | AAMI |
| Merit Reviewer: | Member Maurice Castagnet |
| DATE OF DECISION: | 14 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; where the motor accident occurred while the claimant was attempting to make a U-Turn across three lanes of traffic and the speed limit at the location of the motor accident was 60kph; claimant did not see the insured vehicle prior to the accident; rear visibility limited to about 50 metres with a bend in the road; where the claimant’s transit van did not have the use of a rear-vision mirror; Held- claimant wholly at fault for the motor accident. |
| Determinations made: | 1. 1. For the purposes of section 3.11 the motor accident was caused wholly by the fault of the claimant. 2. 2. For the purposes of section 3.28 the motor accident was caused wholly by the fault of the claimant. 3. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $3,762 inclusive of GST. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
INTRODUCTION
1. These proceedings concern a Miscellaneous Claim assessment under Schedule 2, clauses (3) (d) and (e) of the Motor Accident Injuries Act 2017 (the MAI Act).
2. The claimant, Joy McGrath, seeks a review of the insurer’s decision made under sections 3.11 and 3.28 of the MAI Act to the effect that the claimant was wholly at fault for the motor accident.
BACKGROUND
3. The claimant is a 65-year-old woman who suffered significant injuries in a motor accident on 21 April 2020. At about 6am on that day, as the claimant proceeded to make a U-turn across Myall Road, Cardiff, her Ford Transit Van collided with the insured’s green Mitsubishi Triton 4x4 utility.
4. The claimant’s injuries included injuries to her right shoulder, head, right knee and chest. The insurer conceded that the claimant sustained a “non-minor injury” in the accident.
5. On 11 May 2020, the claimant made an application for payment of statutory benefits. The insurer accepted liability to make those payments for the first 26 weeks.
6. On 11 August 2020, the insurer notified the claimant that it declined liability to make further payments beyond 26 weeks on the basis that the claimant was wholly at fault for the motor accident.
7. On 22 September 2020, the claimant sought an internal review of the insurer’s decision. On 29 September 2020, the insurer issued a determination affirming its original decision.
8. On 14 July 2021 the claimant commenced these proceedings in the Personal Injury Commission (the Commission) to resolve the dispute.
9. The proceedings are now before me for determination.
DETERMINATION ON THE PAPERS
10. At a teleconference conducted on 8 December 2021, the parties agreed that, considering the issues that remain in dispute, I could proceed to decide the matter
based on the documents before me.
11. I am satisfied that there is sufficient information before me to determine the dispute without holding a formal hearing.
12. In making my decision, I considered the following documents:
a.(a) the Application for Personal Injury Benefits dated 11 May 2020;
a.(b) the Police Report, dated 30 June 2020;
a.(c) the investigation report of Quantumcorp dated 14 July 2020, which included an accident sketch diagram and a signed statement from the insured driver, Luke Cook, and various sketches and photographs of the site of the accident prepared by Rochelle Ishac of Quantumcorp;
b.(d) the Liability Notice - Benefits after 26 weeks dated 11 August 2020;
a.(e) the insurer’s internal review decision conceding “non-minor” injury dated 25 September 2020;
b.(f) the insurer’s internal review decision affirming its denial of liability to make payments for statutory benefits dated 29 September 2020;
c.(g) the documents produced by the NSW Police Force pursuant to a Direction for Production, which included police notebook statements from the claimant and the insured driver, and various photographs of the scene of the accident;
d.(h) the transcript of proceedings on 19 May 2021 in the Local Court, Toronto, concerning the hearing of the claimant’s traffic offence, “Make U-turn without giving way to vehicle” ( the Local Court proceedings);
e.(i) the claimant’s submissions to the Commission dated 24 June 2021;
a.(j) the insurer’s submissions in reply to the Commission dated 30 July 2021;
a.(k) various photographs of the scene of the accident provided by the claimant, and
b.(l) the claimant’s three sketch diagrams of the accident, prepared on 21 October 2021.
LEGISLATION
a.13. In making my decision, I have considered the following legislation and guidelines:
•• the MAI Act;
EVIDENCE
•• Motor Accident Injuries Regulation 2017 (the Regulation);
•• Motor Accident Guidelines 2017 (Version 8) (the Guidelines), and
•• Civil Liability Act 2002 (the Civil Liability Act).
a.14. The following facts are uncontroversial:
a.(a) The insured driver was travelling in an easterly direction along Myall Road, Cardiff.
b.(b) At the location of the accident, there were four lanes of traffic facing east. These comprised of a parking lane next to the kerb, two general traffic lanes 2 and 3 and the fourth, a right-turn lane.
c.(c) Prior to the accident, the claimant’s vehicle was parked in the parking lane along Myall Road facing east.
d.(d) At the location of the accident, the speed limit was 60kph.
a.(e) The accident occurred before sunrise, and it was slightly dark.
a.(f) The weather was fine, and the road surface was dry.
The claimant’s evidence
a.15. The claimant was interviewed by Senior Constable Amelia Javurek (SC Javurek) on 28 April 2020. The claimant’s statement from the interview was recorded in SC Javurek’s notebook as follows:
“My vehicle was parked out the front of my house near the telegraph pole. I drive [sic] up in the park lane slightly towards 88 Myall Rd. I checked both my mirrors. I proceeded to do a U-turn. I always look in my passengers [sic] side mirror as it gives me a view down the road to the corner. The road coming up to the hill was clear so I proceeded to do my U-turn. I was in the middle of the road. Next thing I new [sic] my vehicle was flying up the road on the other side. It landed about 30- 35 metres on the other side of the road in the gutter. I tried to get out but I couldn’t open the door.”
a.16. The claimant also stated that she did not see the other vehicle before it collided with her. At the time of the collision, she did not see any other vehicles on the road. She had her headlights on.
b.17. In her application for statutory benefits on 11 May 2020, the claimant described the circumstances of the accident in the following terms:
“Whilst working as a courier driver for Toll, I was involved in a car accident when I conducted a U Turn outside of my home. When I performed the maneuver [sic] I checked all of my mirrors and it was safe. The accident occurred when I was halfway through the U Turn and halfway across the road. I was subsequently hit by a car that had sped around the corner of my street. The car hit me on the drivers [sic] side of my vehicle.”
a.18. On 19 May 2021, the claimant gave oral evidence in the Local Court proceedings. I have read the transcript of those proceedings. The claimant’s evidence may relevantly be summarised as follows:
b.(a) When asked by the presiding Magistrate, “What do you want to tell me about what happened that morning?”, the claimant said – “… I entered my vehicle, I checked all my blind spots and then I proceeded to do a U-turn to go down which I have performed over the last 18 years. There was nothing coming until the first I knew anything was there [sic] was the point of impact
… From the bend to the point of impact, that measures 50 metres, so I believe if I was travelling in a 60k- kilometres [sic], I would have had enough time to slow down or change lanes as you would have multiple lanes and there was no other traffic in the area at the time.”
a.(b) She lives at 90 Myall Road but there is a bus stop in front of her house. She therefore always parks in front of number 88 Myall Road, which is on the corner of Louisa Avenue.
b.(c) The claimant accepted that because her vehicle was a large van, she was not able to look in the rear-view mirror. She has a reversing camera installed so that her inside rear-vision mirror is always showing her “what’s down behind”.
c.(d) The claimant said that “… he could have been coming around the bend as I was doing it (the U-turn), but he was not around the bend when I proceeded. He was not in view, I meant to say.”
The insured driver’s evidence
a.19. The insured driver was interviewed by SC Javurek at the scene of the accident. The insured driver’s statement about the circumstances of the accident is recorded in SC
Javurek’s notebook as follows:
“I was travelling Nth East up Myall Rd. Vehicle AV71RQ was parked on the side of the road. She has merged out and done a U-Turn in front of me.”
a.20. On 2, 3 and 17 June 2020, the insured driver was interviewed by telephone by Rochelle Ishac of Quantumcorp. He subsequently provided a signed statement of his evidence from the telephone interviews, which is undated. The insured driver’s evidence in that statement may be summarised as follows:
b.(a) He is a carpenter by trade. He left his home at 5.50am on his way to work which is about 25 minutes away. He was due at work at 6.45am. He was not in a rush.
c.(b) He was travelling on Myall Road and his headlights were activated as it was a bit dark at that time of the morning. He does not recall whether street lights were activated.
d.(c) The accident occurred outside 90 Myall Road. The road is straight where the collision occurred, however bends.
e.(d) He is familiar with the location of the collision as he drives in that area daily.
f.(e) Prior to the collision, there were no vehicles in front of him on the road. There were a number of parked cars in the left-hand parking lane.
g.(f) He was travelling in lane 1 of 3, the third being the right-turn lane.
a.(g) The speed limit is 60kph.
a.(h) He was travelling eastbound at approximately 60kph. As he approached number 90 Myall Road, the claimant’s vehicle pulled out from the left-hand parking lane in front of him.
b.(i) He had not seen the claimant’s vehicle until it pulled out in front of him. At this point, the claimant’s vehicle was close to his vehicle. He slammed on the brakes and veered to his right-hand side into lane 2 of 3. The claimant’s vehicle crossed over from lane 1 to lane 2 with the intention to conduct a U-turn and impacted with his vehicle.
c.(j) After the collision, both vehicles continued to roll onto the other side of the road and into the gutter.
d.(k) The force of the impact was a 9/10 as he may have struck the claimant’s vehicle at over 50kph.
e.(l) He was driving a Mitsubishi Triton 4x4 utility vehicle which was fitted with front bull bars.
f.21. On 19 May 2021, the insured driver also gave oral evidence in the Local Court proceedings. His evidence may be relevantly summarised as follows:
g.(a) He confirmed the statement he made to the NSW Police Force that the claimant merged out and did a U-turn in front of him.
h.(b) He said the speed limit was 60kph and he was doing 60kph at the time of the accident.
i.(c) He saw the claimant’s vehicle in the parking lane before the claimant made the U-turn.
NSW Police Force
a.22. The NSW Police Force attended the scene of the motor accident.
a.23. In the Police Report dated 30 June 2020, the “Crash Summary Details” of the motor accident are described as follows:
“Vehicle 2 was travelling north on Myall Road, Cardiff when vehicle 1 pulled out from the side of the road and attempted to do a U-turn at the intersection of Lois Crescent. Vehicle 2 collided with the driver’s side of vehicle 1. Driver 1 sustained a broken shoulder as a result of the incident.”
THE INSURER’S SUBMISSIONS
a.24. The insurer’s submissions may be summarised as follows.
a.(a) The claimant failed to observe the road, failed to observe the insured vehicle, failed to give way to the insured vehicle and failed to keep a proper lookout.
b.(b) The claimant crossed over oncoming traffic when it was unsafe to do so.
a.(c) The claimant failed to take any or any adequate care for her own safety.
a.(d) The claimant alleges that the accident was caused as a result of the insured vehicle speeding around the corner. However, the claimant has not provided any evidence to support the allegation.
b.(e) The location where the claimant commenced her U-turn was a dangerous area to conduct such a manoeuvre and placed an even greater responsibility upon the claimant to look for traffic before moving off from her position. The claimant’s view of traffic travelling eastbound on Myall Road was restricted by the bend in the road. Not only did the claimant have to look for traffic behind her, but she also had to consider westbound traffic, prior to making her U-turn.
c.(f) The insured driver’s evidence is that there were cars parked in the parking lane. The insurer submits that this would have undoubtably obscured the claimant’s view of vehicles travelling along Myall Rd behind her.
d.(g) The insurer submits that the evidence supports a finding that the claimant is wholly at fault for the accident. Alternatively, the evidence supports a finding that the claimant has contributed to the accident greater than 61%.
THE CLAIMANT’S SUBMISSIONS
a.25. The claimant’s submissions may be summarised as follows.
a.(a) The claimant conducted a U-turn outside her home. When she performed the manoeuvre, she checked all her mirrors to ensure it was safe.
b.(b) The accident occurred halfway through the U-turn and halfway across the road. The claimant’s vehicle was then subsequently hit by the insured vehicle that had sped around the corner of her street. The insured vehicle then impacted her vehicle.
c.(c) The sketch diagram provided by the Quantumcorp presents an inaccurate description and image of the accident. The claimant’s evidence is that she was parked between lots 90 and 88 on Myall Road.
d.(d) The claimant submits that there was no traffic in the area from the bend to the point of impact which ranges 50 metres. The claimant submits that if the insured driver was travelling 60kph, he would have had more than enough time to slow down or alternatively, change lanes.
e.(e) The claimant therefore submits that she was not wholly or mostly at fault
in the accident. Alternatively, if I were to find contributory negligence on her part, such finding would not be greater than 50%.
THE RELEVANT LEGISLATION
a.26. Part 3 of the MAI Act is concerned with the entitlement to statutory benefits and the circumstances in which they are payable in respect of death or injury resulting from a motor accident.
b.27. Section 3.1 of the MAI Act provides that the claimant as an injured person is entitled to payment of statutory benefits regardless of whether she was at fault in the motor accident.
c.28. On that basis, the claimant received payment of statutory benefits from the insurer for a period of 26 weeks.
d.29. At the end of that period, in reliance on sections 3.11 and 3.28 of the MAI Act, the insurer ceased paying those benefits.
e.30. Sections 3.11(1)(a) and 3.28 (1)(a) of the MAI Act provide that an injured person is not entitled to statutory benefits of weekly payments and treatment and care expenses incurred more than 26 weeks after the motor accident if the accident was caused wholly or mostly by the fault of the injured person.
f.31. Sections 3.11(2) and 3.28 (2) provide that a motor accident was caused mostly by the fault of the claimant if the contributory negligence of the claimant in relation to the motor accident was greater than 61%.
g.32. In this case, the insurer’s decision was made pursuant to sections 3.11(1)(a) and 3.28 (1)(a) of the MAI Act to the effect that the claimant was wholly at fault in the motor accident.
h.33. Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
a.34. In section 5 of the Civil Liability Act, negligence is defined as meaning failure to exercise reasonable care and skill.
b.35. Pursuant to section 3B(2)(a) of the Civil Liability Act, Divisions 1-4 and 8 of Part 1A (Negligence) apply to motor accidents.
c.36. For the purpose of assessing breach of duty of care, section 5B(1) of the Civil Liability Act provides that a person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person
knew or ought to have known), (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
a.37. Section 5B(2) provides that in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, and (d) the social utility of the activity that creates the risk of harm.
LEGAL PRINCIPLES – DRIVER’S DUTY OF CARE
a.38. The principles concerning the duty of care a driver owes to other road users, and relevant to breach of duty by reference to s 5B of the Civil Liability Act, were summarised by Meagher JA (Macfarlan and Emmett JJA agreeing) in Marien v Gardiner [2013] NSWCA 396 as follows:
"[33]The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.
•[34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47
- 48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).
•[35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at
[13]. The exercise of reasonable care requires, as the majority observed
in Manley v Alexander at [11], 'reasonable attention to all that is happening on and near the roadway that may present a source of danger'. That in turn requires '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'.
•[36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
•[37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the 'limits of visibility and control' so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61],
citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An
unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision."
DISCUSSION
a.39. Considering the whole of the evidence, I make the following factual findings.
a.(a) The claimant lives at number 90 Myall Road, Cardiff. There is a bus stop situated in front of her house. Prior to proceeding to make the U-turn, the claimant’s vehicle was parked near the front of number 88 Myall Road which is the last house before the corner of Louisa Avenue and Myall Road. Her parked vehicle was facing east.
b.(b) Before she proceeded to make the U-turn the claimant had checked for traffic in her driver-side and passenger-side mirrors.
c.(c) The claimant’s vehicle is a large van in which the claimant is not able to
check rear traffic from the inside rear-view mirror. At the time of the accident, the claimant had a reversing camera fitted in her inside rear-view mirror so that she can see what is behind her vehicle.
a.(d) The claimant relies on her passenger-side mirror “to get a view down to the corner” of traffic at the rear of her vehicle.
b.(e) The distance from the corner or bend in Myall Road behind the claimant’s vehicle to her parking position near number 88 Myall Road, was about 50 metres. This is consistent with the claimant’s measurement of that distance in one of her sketch diagrams and the measurements taken by Quantumcorp of the site of the accident.
c.(f) The claimant checked for traffic travelling westbound on Myall Road. The road was clear before she proceeded to make the U-turn.
d.(g) The insured driver was driving his green 4x4 utility fitted with front bull bars at a speed of about 60kph in an easterly direction along Myall Road. The insured vehicle was travelling in the general traffic lane 1, that is, the first traffic lane next to the parking lane.
e.(h) Both the claimant’s and the insured driver’s vehicles had their headlights on.
f.(i) The collision occurred in general traffic lane 2, which is lane 3 of the four lanes on Myall Road facing east.
g.40. There is no direct evidence that the claimant firstly looked for traffic travelling in a westerly direction before she completed her checks in her two side mirrors for traffic behind her or whether this was done afterwards. In any event, there is no evidence that the claimant either looked again in her two side mirrors or looked again for traffic in a westerly direction before proceeding with the U-turn.
h.41. In light of the above factual findings and on the balance of probabilities, I find that the claimant has proceeded to make a U-turn without keeping a proper look out.
42. In oral evidence in the Local Court proceedings, the claimant accepted that the insured driver may have been coming around the bend as she commenced to do her U-turn but there was no vehicle in her view when she did so.
j.43. In circumstances where:
•- the claimant relied on her passenger-side mirror to check for traffic coming
around a corner 50 metres behind her,
•- cars were parked behind her in the parking lane and, at the same time,
•- she had to monitor west bound traffic,
it is highly probable that, by the time she commenced to make her U-turn into lane 1, the insured vehicle would have travelled around the corner and arrived close to the position of the claimant’s vehicle. That probability is consistent with the insured driver’s evidence that he saw the claimant’s vehicle merge in front of him in lane 1 from a parked position in the parking lane.
a.44. The claimant contends that the insured driver was speeding coming around the corner. She submits that if the insured driver was travelling at 60kph, he would have had enough time to slow down or alternatively, change lanes.
b.45. I do not accept that submission. There is no evidence that the insured driver was speeding. In his signed statement and in his oral evidence in the Local Court proceedings, the insured driver said that he was travelling at approximately 60kph.
c.46. In my view and according to the legal principles to which I have referred, the insured driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of his vehicle. I have found that he was travelling within the speed limit coming around the corner. He is not required to be in a position where he can react to everything which may happen in the vicinity of his vehicle. He is not required to travel at a speed which is within the 'limits of visibility and control' so as to be able to react to whatever ventures into his vehicle's path.
d.47. The evidence reveals that when the insured driver saw the claimant’s vehicle for the first time, close to his vehicle, he “slammed on the brakes” and took evasive action by veering to the general traffic lane 2 (also described in the evidence as lane 3). As it happened, the insured driver’s evasive action could not prevent the accident occurring, because the claimant’s vehicle was also heading in that direction as part of her U-turn manoeuvre.
e.48. In the circumstances of this case, and for the purposes of ss 3.11 and 3.28 of the MAI Act, I find that the claimant was wholly at fault for the motor accident.
COSTS
a.49. The claimant was unsuccessful in this application. However, success is not a prerequisite to the claimant recovering regulated costs from the insurer.
b.50. This is a miscellaneous claims assessment matter, and pursuant to clause 3(1) of Part 1, Schedule 1 of the Regulation, the maximum costs for legal services provided to a claimant in connection with an assessment under Division 7.6 of the MAI Act involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units. That currently equates to $1,710 plus GST.
c.51. In this matter, there were two disputes submitted for assessment under Schedule 2, clauses 3 (d) and (e) of the MAI Act.
d.52. There is no reason why the claimant should not be allowed her legal costs in the maximum regulated amount for each dispute. On that basis, I allow the claimant her legal costs in the total amount of $ 3,420 plus GST.
CONCLUSION
a.53. My determination of the Miscellaneous Claim is as follows:
a.54. For the purposes of s 3.11 of the MAI Act, the motor accident was caused wholly by the fault of the claimant.
b.55. For the purposes of s 3.28 of the MAI Act, the motor accident was caused wholly by the fault of the claimant.
c.56. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Regulation is $3,762 inclusive of GST.
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