Minea v Allianz Australia Insurance Limited
[2023] NSWPIC 625
•22 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Minea v Allianz Australia Insurance Limited [2023] NSWPIC 625 |
| CLAIMANT: | Mao Minea |
| INSURER: | Allianz |
| MEMBER: | Stephen Boyd-Boland |
DATE OF DECISION: | 22 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017, damages claim; liability issue; claimant involved in collision with the insured’s vehicle turning across oncoming traffic at traffic light; issue whether traffic light green or red; expert evidence on traffic light; Held – no negligence; claimant wholly at fault for accident. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. On the issue of liability for the claim, the insured owed a duty of care to the claimant, but the insured did not breach that duty of care. 2. The claimant has no entitlement to damages. 3. No costs are assessed in favour of the claimant. |
STATEMENT OF REASONS
INTRODUCTION
Background
The claimant is Mao Minea.
On 6 July 2020 the claimant was involved in a collision with the insured driver’s vehicle.
The claimant was taken to Westmead Hospital. The Discharge Summary provides that the claimant had slight chest discomfort on palpation of the lateral chest wall. A chest X-ray demonstrated no fracture of the pneumothorax, and the remainder of the assessment was unremarkable.
The Assessment conference
Mr Petrushnko appeared for the claimant and Ms Allana for the insurer.
The claimant had limited English, and a Khmer interpreter was required.
At the commencement of the assessment conference there was some discussion in relation to the earnings of the claimant.
Significantly there remained a dispute as to the circumstances immediately before the collision including the colour of the traffic signal observed by the claimant and the insured driver.
At the assessment conference:
(a) Mao Minea, the claimant, gave oral evidence with the assistance of an interpreter and was questioned;
(b) Bilal Sabbagh, the insured driver, gave oral evidence and was questioned, and
(c) the passenger of the insured driver gave oral evidence and was questioned.
The documents
The assessment conference focussed on the colour of the traffic light for the claimant and the insured driver and the documents provided the basis for that focus.
The claimant’s version of events as set out in the incident report form as follows:
“On the 6 of July 2020 at 9.30pm, I was driving on Chetwynd Rd when crossing to the traffic light I slow my car shown and signal right, I saw the round and arrow green light together then I turn right, suddenly I don’t even know where the car come from and hit me very strong. I was very panic and felt into dizzy and chest pain very hurt and very to breath in.”
The interview with Constable Rachel Herne is partly based on information provided to Constable Benson. The interview includes in relation to the independent witness, Bosco Tran at A87 “… he wasn’t able to confirm who had a green light or anything like that …”.
The interview with Constable Rachel Herne in relation to the version of events provided to Constable Benson by the claimant includes at A34:
“ … I saw a green light and a green arrow and I kept driving and turned right on to Chetwynd Road … I did not see the other car that hit me …”
The interview with Constable Rachel Herne in relation to the version of events provided by the insured driver includes at A57:
“ … she was travelling in the opposite direction to me and started to turn right on to Chetwynd …She turned straight in front of me. I had no time to stop. I had a green light …”
The insured driver, in his statement dated 19 August 2020, includes at paragraph 34:
“… I approached the traffic lights and I had a green light … I saw the claimant in her vehicle stopped in the right turning lane on Hawksview Street waiting to turn right into Chetwynd Road.”
The insured driver, in his statement at paragraph 35 provides:
“… She was stationary at the red right turn arrow. The traffic lights were going green both ways on Hawksview Street. I proceeded to drive and just got into the intersection…”
There was a draft unsigned statement from the passenger of insured driver, Jason Tomua. The passenger of insured driver, Jason Tomua, in his statement at paragraph 21 provides “She turned on a red light …”.
There was expert evidence in the form of a report from Jamieson Foley from Mr Byrnes dated 20 January 2021 and from William Keramidas dated 29 November 2021.
There was no dispute that the phasing of the traffic lights was as set out in the report of William Keramidas of 29 November 2021 at page 24 Line 9 to page 25 line 10.
This includes:
“The intersection itself could be described as a cross intersection which was controlled by means of traffic control signals. As indicated earlier in this report, the author was provided with a copy of the signals phasing and timing report by Transport for NSW relating to the subject location on the date in question. The intersection phasing at this location comprised four phases; ‘A’, ‘B’, ‘C’ and ‘D’.”
The evidence is that when the traffic lights are operating properly, it is not possible for to have “green” lights for both. There is no evidence to the effect that the traffic lights were not operating properly at the time of the accident.
Mr Keramidas noted that Mr Byrnes had similarly assessed the impact configuration and impact location, and although both assessments slightly differed, the slight variations would be inconsequential in the context of the incident circumstances.
The two scene photographs and police observations enabled the rest position of the vehicles to be assessed, with Mr Keramidas determining that both vehicles were travelling towards the north-eastern corner of the intersection after impact.
The impact speeds were able to be assessed leading to the conclusion that the insured’s vehicle was likely to have been travelling at or marginally below 50 kmph.
Further, the claimant’s vehicle was considered to have been likely travelling at a speed in the order of 33 kmph.
Mr Keramidas noted that the above speed estimates were entirely consistent with each driver’s account of the subject accident.
Mr Keramidas determined on the information provided, the ‘far more probable’ sequence involved the intersection operating in phase ‘A’. This phasing sequence provided for a green circle for both east and westbound traffic on Hawksview Street, and a red right turn arrow for the claimant’s direction of travel into Chetwynd Road.
Mr Keramidas, based on the likely timing of the turn attempted by the claimant, considered that it was unlikely that there was sufficient time for the insured to have perceived and reacted to the motion of the claimant’s vehicle in time to take evasive action.
Further, based on the timing of the turn attempted by the claimant, Mr Keramidas considered that she had entered the intersection and accepted a gap to the oncoming insured vehicle, providing the disclaimer that this was on the assumption the claimant had indeed observed the insured vehicle. Mr Keramidas noted that less than 19% of drivers would have accepted this gap based on observational studies, and in the other scenario provided, no driver would have accepted this gap.
Mr Keramidas noted that the claimant’s evidence was that she did not see the insured vehicle, even though it should have been in her line of sight for approximately 9.0 seconds prior to impact.
The evidence of the claimant and the insured driver is that both assert they had “green” lights. The evidence is that when the traffic lights are operating properly, it is not possible for both to have “green” lights. There is no evidence to the effect that the traffic lights were not operating properly.
The claimant’s evidence
The claimant gave evidence in relation to her recent earnings consistent with the payslips that had been provided. She confirmed that she worked 15 hours per week from 21 March 2021 and that her duties involved cutting wine labelling and dragging items. She maintained that she could not lift items because they weighed in excess of 15 kg. Over this period her hours had remained consistent, but her hourly rate had increased on a number of occasions.
The claimant was questioned by counsel for the insurer. She was questioned about her statement noting that the names of the roads contained on a number of documents were incorrect. The claimant maintained that at the time of the accident she was uncertain about the names of the particular roads.
The claimant was questioned about a claim form that she had completed in relation to the property damage claim. The claimant accepted that at one point she had believed that the car had been coming from the street to the left of her direction of travel. The claimant conceded that following the accident she was confused about the circumstances of the accident.
She conceded that she did not look to the left but looked in the direction of her travel and direction that she was turning.
Throughout the course of her evidence the claimant maintained that the light was green for her.
The claimant maintained that she did not see the insured driver's vehicle coming. She was unable to explain why she did not see the insured driver’s vehicle come.
When asked whether she was looking for ongoing traffic she responded that she didn't see the car on the road and that she was still not sure where the other car came from. She accepted that there was nothing impeding her view and that there were no obstructions to prevent her from seeing a vehicle. She said that she first saw a vehicle at the time he had hit her.
The evidence of Bilal Sabbagh
The insured's driver Bilal Sabbagh gave evidence. He confirmed that he had a green light.
Bilal Sabbagh was questioned by counsel for the claimant. He maintained that the light was green, and that the claimant simply turned in front of him, leaving him almost no time to react.
The evidence of Jason Touma
The passenger in the vehicle with the insured's driver, Jason Touma, gave evidence. He confirmed that he looked up and saw a green light. He confirmed that he travelled this road frequently and was very familiar with it.
Jason Touma was questioned by counsel for the claimant. He maintained that the light for them was green he stated that he did not think that the driver had time to hit the brakes and that the claimant simply turned in front of their vehicle.
The submissions for the insurer
The written submission of the claimant is described in the claimant’s bundle as being dated 31 July 2023.
The submissions for the insurer included that the liability noticed raised issues including;
(a) the claimant had failed to keep a proper lookout;
(b) the claimant had failed to give way to oncoming vehicles;
(c) the claimant entered the intersection when it was unsafe to do so, and
(d) the claimant failed to take reasonable care for her own safety.
In her oral submissions counsel for the insurer, Ms Allan noted that the significant issue in this case was whether or not the light was green for the insured driver and whether it was red for the claimant. Ms Allan maintained that in the event that it was found that the light was green then the situation must have been that the light for the claimant was red.
Ms Allan maintained that there was no negligence on the part of the insured driver.
Ms Allan referred to Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396 (Marien) and to paragraphs 33 to 37 of that judgement.
She made specific reference to paragraph 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 appellants circumstances would have done, if anything, by way of response to any foreseeable risk of injury or sources of danger to other road users. … 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 the circumstances’ s 5B(1).”
Ms Allan also referred to Trompp v Liddell (1941) 41 SR (NSW) 108 and specifically to page 109;
“A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at any pace he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car suddenly emerging from the side road as the result of accident, miscalculation, ignorance or recklessness. It means that it is not unreasonable for him to act on the assumption that other drivers are obeying the rules unless there is something which should make him realise that they are not.”
Ms Allan also referred to the report from Mr Byrnes specifically at page 31 in relation to stopping distances. Mr Byrnes stopping distance was 31.4 to 33 m.
Ms Allan also referred to the report from Mr Keramidas at page 33 in relation to his assessment that the point of collision was 12.2 m east of the stop line.
Ms Allan maintained that the insured driver had no time to stop and prevent the collision.
The submissions for the claimant
The written submission of the claimant is described in the claimant’s bundle as being dated
5 July 2023. Also provided were more recent submissions on damages.They refer to the claimant’s version of events as set out in the incident report from as follows:
“On the 6 of July 2020 at 9.30pm, I was driving on Chetwynd Rd when crossing to the traffic light I slow my car shown and signal right, I saw the round and arrow green light together then I turn right, suddenly I don’t even know where the car come from and hit me very strong. I was very panic and felt into dizzy and chest pain very hurt and very to breath in.”
The claimant’s submissions including reference to the Jemison Foley report from Mr Byrnes confirming that there was no phasing of the traffic control signals that simultaneously allowed a green circle for eastbound drivers and a green arrow for westbound drivers to turn right.
It was noted that the report estimated the approach speed for the insured's vehicle at about 50 kmph. The contention be that such a speed in that environment did not afford the insured driver the opportunity to prevent a collision.
The claimant also refers to the opinion of Mr Keramidas as to the likely phasing of the lights.
The claimant’s submissions themselves highlight that the significant issue to be determined is whether the claimant had the green arrow or whether the insured driver had a green light.
In oral submission counsel for the claimant adopted the earlier submissions. It was noted that the claimant should be accepted as a witness of truth. She had made appropriate concessions throughout her evidence.
He submitted that apportionment as had been previously determined would be appropriate.
Consideration
There was no dispute that the phasing of the traffic lights was as set out in the report of William Keramidas of 29 November 2021 at page 24 Line 9 to page 25 line 10.
I accepted the view of Mr Keramidas who noted that Mr Byrnes had similarly assessed the impact configuration and impact location, and although both assessments had slight differences, the slight variations would be inconsequential in the context of the incident circumstances.
The focus of the liability dispute was whether the insured driver had a green light or whether the claimant had a green light.
The evidence of the phasing and the absence of any evidence that the lights were not operating properly left that as the alternatives.
At the assessment conference we had the benefit of oral evidence and questioning of the claimant, Mao Minea, the insured's driver Bilal Sabbagh and the insured's driver’s passenger Jason Touma.
The evidence of both the claimant and the insured driver is that they assert they had “green” lights.
Equally so, the evidence of Jason Touma is that he believed that the insured driver had a green light.
The claimant could not see (or give evidence of) the light for the insured driver and equally so the insured driver could not see (or give evidence of) the light for the claimant.
I accepted the evidence from Bilal Sabbagh, it was consistent with his prior statement, and he maintained that version of evidence when questioned by the counsel for the claimant.
Specifically, I accepted that the light Bilal Sabbagh had was green, that the claimant turned in front of them with very little time if any to react.
I accepted the evidence from Jason Touma, it was consistent with his prior statement, and he maintained that version of evidence when questioned by the counsel for the claimant.
Specifically, I accepted that the light Bilal Sabbagh had was green, that the claimant turned in front of them with very little time if any to react.
The evidence from the claimant was more difficult.
She maintained that the light for her was green and at the same time maintained that she just did not see the vehicle that she collided with.
The claimant was questioned about a number of documents that included descriptions of layout of the accident scene. A number of documents included incorrect the street names being incorrectly labelled.
The claimant stated that she was uncertain about the names of the streets. I accepted that in relation to the mixing of the two street names.
The claimant was questioned about a diagram prepared in relation to the property damage claim. The document was at page 59 of the insurer’s material. That was a drawing of the layout of the accident scene and included the insured’s vehicle entering the intersection from the street to the left of the street the claimant was travelling on.
Despite this uncertainty the claimant maintained that the light was green and that she just did not see the vehicle that she collided with.
Having seen the photos and the details of the accident scene, it is very difficult to accept that if the claimant was keeping a proper look out that she would have seen the insured’s vehicle as she turned right.
There is a direct conflict between the version of events maintained by Bilal Sabbagh and Jason Touma and the version provided by the claimant, in relation to the colour of the traffic light.
Whilst I accept that the claimant was seeking to be honest in her evidence, on the issue of whether the light for her was green or red, I cannot accept her evidence that the light was green. In this regard, I prefer the evidence of Bilal Sabbagh and Jason Touma.
I have preferred the evidence of Bilal Sabbagh and Jason Touma to that of the claimant because;
(a) their evidence has been consistent over time and remined so when questioned;
(b) the evidence of the claimant in relation to a number of aspects of the events has been uncertain, she accepts she did not see the Insured’s vehicle to the extent that she was even unsure of the direction it was travelling in prior to the accident, and
(c) in these circumstances there is an element of uncertainty in the claimant’s recollection and no uncertainty in the evidence of either Bilal Sabbagh and/or Jason Touma.
Having preferred the evidence of Bilal Sabbagh and Jason Touma to that of the claimant, I find that the light for the insured’s vehicle was green.
Having found that the light for the insured’s vehicle was green, in the absence of evidence of any fault in the traffic light, I find that the light for the claimant (the turning arrow) was not green.
I find that the claimant made the turn on a red light.
The evidence of Bilal Sabbagh and Jason Touma was that there was little if any time to react. This is reasonably consistent with the reports from the report of William Keramidas of 29 November 202.
I accept the evidence of the claimant that she did not see the insured’s vehicle.
I accept the of Bilal Sabbagh and Jason Touma, that the claimant’s vehicle turned in front of them leaving a very limited time to react.
There was no evidence that Bilal Sabbagh was driving at a speed in excess of the relevant speed limit.
There was no evidence to contradict the evidence from both Bilal Sabbagh and Jason Touma to the effect that the claimant’s vehicle turned in front of them leaving a very limited time to react.
In my view that is reasonably consistent with the expert opinion from both Mr Byrnes and
Mr Keramidas.
As noted by counsel for the insurer in Trompp Bilal Sabbagh was entitled to assume that other drivers will observe the rules of the road.
As noted by counsel for the insurer in the matters of Marien, whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellants circumstances would have done, if anything, by way of response to any foreseeable risk of injury or sources of danger to other road users.
If I were to find that the risk of the claimant turning in front of the insured deriver in the circumstances (a finding I have NOT made) then I would need to consider what a reasonable driver in the appellants circumstances would have done, I find that the cause of the accident was the negligence of the claimant.
I accepted that the claimant turned in front of them with very little time if any to react. Accepting this evidence and then considering the evidence of both Mr Keramidas and
Mr Byrnes, I do not accept that any reasonable action taken by the Insured driver could have or prevent the accident.In the circumstances, I do not find that there was any negligence on the part of the insured driver.
CONCLUSION
The claimant has not satisfied me that the insured breached its duty of care, or that he has not acted otherwise than in accordance with reasonable care to a fellow road user.
As I have found that the insured did not breach the duty of care it follows that the claimant has no entitlement to damages.
I will issue a certificate of assessment as to liability and, as the claimant has been unsuccessful, I will not award costs in her favour.
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