Muratovic v QBE Insurance (Australia) Limited
[2022] NSWPIC 429
•2 August 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Muratovic v QBE Insurance (Australia) Limited [2022] NSWPIC 429 |
| CLAIMANT: | Fuad Muratovic |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 2 August 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 Act2017; where the claimant’s vehicle entered into a roundabout and collided with the insured vehicle; claimant failed to keep a proper lookout; Held — claimant wholly at fault for the motor accident. |
DETERMINATIONS MADE: | Issued under s 7.36(4) of the Motor Accident Injuries Act2017 The findings of the assessment of this dispute are as follows: 1. For the purposes of ss 3.11 and 3.28 the motor accident was caused wholly by the fault of the claimant. 2. 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 s 7.36(5) of the Motor Accident Injuries Act 2017
INTRODUCTION
These proceedings concern a Miscellaneous Claim assessment under Schedule 2, cls (3)(d) and 3(e) of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant, Fuad Muratovic, seeks a review of the insurer’s decision made under ss 3.11 and 3.28 of the MAI Act to the effect that the claimant was wholly at fault in the motor accident.
BACKGROUND
The claimant is a 63-year-old man who suffered injuries in a motor accident on 8 February 2021, when the vehicle he was driving collided with the insured vehicle at a roundabout at the intersection of Wonga Street and Hill Road, Lurnea.
On 22 March 2021, the claimant made an application with the insurer for payment of statutory benefits. This was for both weekly payments for loss of income and payments for treatment and care.
The insurer accepted liability to make these payments for the first 26 weeks.
On 4 June 2021, the insurer notified the claimant that it declined liability for payment of benefits after 26 weeks on the basis that he was wholly at fault for the accident.
On 31 August 2021, the claimant sought an internal review of the insurer’s decision.
On 21 September 2021, the insurer issued a determination affirming its original decision.
On 20 October 2021, the claimant commenced proceedings in the Personal Injury Commission (the Commission) to resolve the dispute.
The proceedings are now before to me for determination.
DETERMINATION ON THE PAPERS
I conducted several teleconferences with the parties over the course of the proceedings to discuss the material provided to the Commission and to explore the availability of further evidence. Ultimately, further documents were obtained from the NSW Police Force and both parties.
At the teleconference conducted on 29 April 2022, the parties agreed that I could proceed to determine the matter “on the papers”.
I am satisfied that there is sufficient information before me to determine the matter on the papers without holding a formal hearing.
In making my decision, I have considered all the documents provided by the parties and documents produced by the NSW Police Force to the Commission. These include:
(a) the claimant’s Application for Personal Injury Benefits dated 22 March 2021;
(b) the NSW police report dated 30 March 2021;
(c) the insurer’s Liability Notice for Benefits after 26 weeks dated 4 June 2021;
(d) the claimant’s application for internal review dated 31 August 2021;
(e) the insurer’s internal review decision dated 21 September 2021;
(f) the claimant’s submissions undated but lodged with the Commission on 20 October 2021;
(g) the insurer’s submissions dated 22 November 2021;
(h) the claimant’s signed statement dated 25 January 2022;
(i) the signed statements of the insured driver dated 24 March 2022 and 4 April 2022;
(j) the insurer’s further submissions and schedule of documents dated 18 May 2022, which included the insured vehicle records from the insured driver’s employer, D&D Services (Aust) Pty Ltd and a series of photographs from Brooksight Investigations;
(k) various Certificates of Fitness, and
(l) 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 coloured photographs taken at the scene of the accident, including the two vehicles involved in the accident.
LEGISLATION
In making my determination, I have considered the following legislation and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017 (the Regulation);
· the Motor Accident Guidelines, Version 8.2 (the Guidelines);
· Civil Liability Act 2002 (the Civil Liability Act), and
· Road Rules 2014 (NSW) made under the Road Transport Act 2013 (the Road Rules).
EVIDENCE
The following facts of the scene of the accident are uncontroversial:
(a) the motor accident occurred at about 5.30am on 8 February 2021 at a roundabout at the intersection of Wonga Road and Hill Road, Lurnea NSW;
(b) both Wonga and Hill Roads provide single lanes of traffic in each direction;
(c) the accident occurred in a residential zone where the speed limit is 50kph;
(d) the road was wet, and
(e) it was dark.
The claimant’s evidence
The claimant was interviewed by the NSW Police Force at his home on 11 March 2021. The claimant’s description of the circumstances of the accident is recorded in the police notebook F665808 as follows:
“I came into the roundabout. There was a red car opposite me with its right indicator on (sedan). I was turning onto Wonga Road. I looked to my right and there was nothing and it was dark at the time. I started driving into the roundabout and so did the other car opposite me. The front wheel of my car was in the roundabout, I heard a horn, then the other car hit me in the front wheel, drivers [sic] side. I don’t remember anything after that.”
In answer to the question from the police, “What speed were you travelling prior to the collision?”, the claimant replied:
“30-40”.
In his application for statutory benefits dated 22 March 2021, the claimant described the circumstances of the accident as follows:
“I was travelling down Hill Rd, another vehicle was entering the roundabout [sic] facing up Hill rd. A vehicle entering from Wonga Rd did not give way to the vehicle entering to go up Hill Rd and sped through hitting my vehicle.”
In his signed application for internal review dated 31 August 2021, the claimant said he was not at fault for the motor accident for the following reasons:
"(a) I was driving northerly along Hill Road, Lurnea, NSW 2170. While doing so, I had my seatbelt on and was driving 40km/hr whilst the speed limit was 50km/hr.
(b) As I approached the intersection at Wonga Rd, Lurnea NSW 2170 to turn right, another vehicle who was driving south along Hill Road simultaneously entered the roundabout while indicating right to head in the [sic] westerly direction along Wonga Road.
(c) Suddenly, another vehicle travelling westerly along Wonga Road, also entered the roundabout at high speed without giving way to the other motor vehicle and collided into the drivers [sic] side of my motor vehicle.”
The claimant provided a signed statement to the Commission dated 25 January 2022. His evidence concerning the circumstances of the accident is as follows:
“…
7. At around 5:30am, I commenced my travel from my residential address to attend my place of employment in Smithfield.
…
11. I approached the intersection at Wonga Road to turn right. As I reached the roundabout, I came to a complete stop to give way to any oncoming traffic so that I could proceed through the roundabout once it was safe to do so.
12. I conducted a proper lookout (both to the left and right) and ensured that it was safe to proceed before entering the roundabout. When entering the roundabout, there was no oncoming vehicles coming from the left or right side of the roundabout. There was, however, another motor vehicle travelling south along Hill Road entering the roundabout with indicators to turn right to head westerly along Wonga Road which I observed before proceeding through the roundabout. This motor vehicle had entered the roundabout a little after I had.
13. As I proceeded through the roundabout, suddenly, another motor vehicle bearing registration ‘BQ 85 LK’ travelling westerly along Wonga Road entered the roundabout at high speed without giving way and collided into the driver side of my motor vehicle at considerable speed. This motor vehicle was a White Mitsubishi Triton.
14. I was unable to get a chance to take any preventative measures as the other motor vehicle appeared suddenly at high speed.
…”
The insured driver’s evidence
The insured driver was interviewed by the NSW Police Force at the scene of the accident. The insured driver’s statement about the circumstances of the accident is recorded in senior Constable Pappas’ notebook as follows:
“I was coming down Wonga Road and coming to the roundabout I slowed down and started going in the roundabout when I saw a car coming down Hill Road to the roundabout. I knew he was coming too fast so I beeped my horn. I braked but it was too late and we collided and took out a sign in the middle of the island…I called police and ambulance”.
The insured driver provided two signed statements to the Commission.
In her statement of 24 March 2022, the insured described the circumstances of the accident as follows:
“…
15. At the time of the accident, I was driving vehicle … a White Mitsubishi Triton 2012.
…
18. The damage to my car was to the front passenger side.
…
22. The damage to the Claimant vehicle was to the front.
…
23. My speed at the point of impact was about 15k per hour as I was negotiating a roundabout. I told police the Claimant was going at least 60 to 70k.
…
32. The incident occurred at about 5:30am on the 8 February 2021, at the roundabout intersection of Wonga Road and Hill Road Lurnea NSW.
…
48. I recall on the day of the accident I had just finished work at Yagoona, and I travelled the 30 minutes towards home and was travelled [sic] west on Wonga Road in the single lane of traffic.
49. I was travelling about 40k per hour on Wonga Road towards the roundabout accident intersection.
50. There were no other cars on the road at 5:30am and I looked ahead and could see the roundabout intersection with Hill Road.
51. I had my headlights and slowed to about 15 to 20k per hour and entered the roundabout.
52. I travelled a few meters into the roundabout and was intending to travel straight. I then looked to my left and saw the Claimant vehicle approaching the roundabout, on Hill Road coming down the hill at speed, and I could see his headlights coming towards me.
53. I remember saying to my friend who I was on the phone with at the time, I said, “this car is going to hit me and I [sic] about to have an accident.
54. I could see that this car was not going to stop, and it was like the driver just didn’t see me. I sounded my horn in an attempt to alert the driver to try and avoid the accident, but he just kept coming.
55. The Claimant vehicle did not break [sic] at all, and the front of his car collided heavily with my front passenger side of my vehicle.
56. The impact pushed my car towards Wonga Road, and we ended up breaking a Give Way sign in the middle of the road where the roundabout goes off towards Wonga Road.
57. I entered the roundabout way before the Claimant vehicle.
…
61. I asked the claimant, ‘what were you thinking, you are at fault, where were you going at suck [sic] a speed.’ He just looked at me and I would say he was in some shock.
…”
In her further statement dated 4 April 2022, the insured driver stated that she accepts that her path of travel was, as depicted in the diagram drawn by the NSW Police Force in their police report.
NSW Police Force
The NSW Police Force attended the scene of the motor accident.
In the police report dated 30 March 2021, the “Crash Summary Details” of the motor accident are recorded as follows:
“West along Wonga Road at Lurnea at a speed of a 40km an hour upon approaching the roundabout at Hill Road a motor vehicle a white Mercedes Benz the [sic] travelling north along Hill Road the driver of the white Mercedes- Benz failed to give way at the roundabout and has collided with the near side front guard of vehicle to [sic] being a Mitsubishi Triton Ambulance and Police were contacted the driver of a vehicle one was conveyed to Liverpool Hospital… to issue driver one an infringement for fail to give way to vehicle on roundabout.”
The NSW Police Force documents produced to the Commission reveal that an infringement notice was issued to the claimant for failing to give way to a vehicle when entering a roundabout.
THE CLAIMANT’S SUBMISSIONS
The claimant’s submissions may be summarised as follows:
(a) The claimant had entered the roundabout from Hill Road to turn right in an easterly direction along Wonga Road.
(b) When it was safe to do so, the claimant proceeded through the roundabout.
(c) The insured vehicle travelling west along Wonga Road entered the roundabout at high speed suddenly without warning and without giving way to another vehicle on its right and collided with the claimant’s vehicle which was in the roundabout in front of the insured vehicle.
THE INSURER’S SUBMISSIONS
The insurer’s submissions may be summarised as follows:
(a) The insurer’s primary submission is that the evidence supports a finding that the claimant was wholly at fault for the motor accident.
(b) Alternatively, the insurer submits that the claimant was mostly at fault for the motor accident.
(c) In his application for statutory benefits, the claimant does not allege that he kept a proper lookout and ensured that it was safe to proceed with respect to traffic coming from his right which was the direction of travel of the insured vehicle. The claimant appears to assert that the sole basis for this decision to enter the roundabout was his perception of the vehicle opposite him, travelling south.
(d) The insurer submits that the claimant failed to keep a proper lookout and ensure that it was safe to enter the roundabout. He failed to give way to the insured driver. The claimant does not state that he actually checked the traffic to his right on Wonga Road.
(e) The insurer submits there is no evidence to support the claimant’s assertion that there was a vehicle entering the roundabout to the right of the insured vehicle.
(f) The claimant asserts that the insured vehicle was speeding and caused the accident. The police report records both vehicles as travelling at 40kph at the time of the accident. Accordingly, were it to be accepted that the insured driver was speeding, it would be reasonable to conclude that the claimant was also speeding. In any event, the insurer submits that the claimant’s assertion does not mitigate against a finding that the claimant was wholly at fault because he did not check at all to determine whether, there was approaching traffic from his right.
(g) The claimant notes that the police report records damage to the ‘front nearside’ (passenger side) of the insured vehicle. The insurer submits that this damage profile is consistent with the claimant’s vehicle striking the insured vehicle after the insured vehicle had already moved in front of the claimant’s vehicle.
(h) The insurer notes that the insured driver was using a hands-free car audio system for her telephone call and was not on a mobile phone at the time of the accident.
THE RELEVANT LEGISLATION
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.
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 he was at fault in the motor accident.
On that basis, the claimant received payment of statutory benefits from the insurer for a period of 26 weeks.
At the end of that period, in reliance on ss 3.11 and 3.28 of the MAI Act, the insurer ceased paying those benefits.
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.
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%.
In this case, the insurer’s decision was made pursuant to ss 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.
Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
In s 5 of the Civil Liability Act, negligence is defined as meaning failure to exercise reasonable care and skill.
Pursuant to s 3B(2)(a) of the Civil Liability Act, Divisions 1-4 and 8 of Part 1A (Negligence) apply to motor accidents.
For the purpose of assessing breach of duty of care, s 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.
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
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
I do not accept that the claimant brought his vehicle to a complete stop when he reached the roundabout.
This is inconsistent with his most contemporaneous statement to the police on 11 March 2021. On that occasion, he said that he “came to the roundabout”. It is also inconsistent with the statement he made in his application for statutory benefits shortly thereafter on 22 March 2021. On that occasion, he said that he was “travelling down Hill Rd” when the insured vehicle did not give way to another vehicle entering the roundabout on the right of the insured vehicle, speeding through and colliding with his vehicle. There was no suggestion by the claimant in either of these statements that he slowed down or became stationary at the roundabout.
In his statement to the police on 11 March 2021, the claimant said that he looked to his right when he “came to the roundabout”. This would be the direction in which the insured driver was travelling. He said he saw “nothing and it was dark at the time”. If he had come to a complete stop, he would have seen the insured driver’s vehicle approaching whether at speed or not.
In her statement to the police at the scene of the accident, the insured driver said that she slowed down coming to the roundabout. When she proceeded into the roundabout, she saw the claimant’s vehicle on Hill Road coming to the roundabout. She said that the claimant was “coming too fast”. She beeped her horn. She braked but could not avoid the collision.
In her statement to the Commission, dated 24 March 2022, the insured driver said that the damage to her vehicle was to the front passenger side. She said that the damage to the claimant’s vehicle was to the front. Her evidence is confirmed by the photographs of both vehicles produced to the Commission by the NSW Police Force that were taken at the scene of the accident. This evidence suggests that it is highly likely that the insured vehicle was well into the roundabout before the claimant’s vehicle entered the roundabout.
The insured driver said that there were no other vehicles on the road at the time of the collision apart from the claimant’s vehicle. The claimant said that there was another vehicle travelling directly opposite him that entered the roundabout shortly after he did. If there was another vehicle entering the roundabout to the right of the insured driver at the time that the claimant entered the roundabout, it is highly probable that the third vehicle would have been involved in the collision that occurred in the roundabout.
I find on the balance of probabilities that
(a) The claimant approached the roundabout at about 40kph.
(b) In reaching the roundabout, the claimant failed to slow down and failed to keep a proper lookout for other traffic before entering the roundabout.
(c) The claimant entered the roundabout and failed to give way to the insured vehicle that was already in the roundabout.
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
The claimant was unsuccessful in this application. However, success is not a prerequisite to the claimant recovering regulated costs from the insurer.
This is a miscellaneous claims assessment matter, and pursuant to cl 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.
In this matter, there were two disputes submitted for assessment under Schedule 2, cls 3 (d) and (e) of the MAI Act.
There is no reason why the claimant should not be allowed his legal costs in the maximum regulated amount for each dispute. On that basis, I allow the claimant his legal costs in the total amount of $ 3,420 plus GST.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
For the purposes of s 3.11 of the MAI Act, the motor accident was caused wholly by the fault of the claimant.
For the purposes of s 3.28 of the MAI Act, the motor accident was caused wholly by the fault of the claimant.
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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