Newling v QBE Insurance (Australia) Limited
[2022] NSWPIC 751
•10 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Newling v QBE Insurance (Australia) Limited [2022] NSWPIC 751 |
| CLAIMANT: | Deklan Newling |
| INSURER: | QBE |
| MEMBER: | Stephen Boyd-Boland |
| DATE OF DECISION: | 10 November 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims dispute; whether the injured person was mostly at fault pursuant sections 3.11 and 3.28; claimant self-represented; rear-end collision at intersection; insurer alleges the claimant failed to give way to traffic causing a collision; New South Wales Road Rules 2014 Rule 126; Held – claimant mostly at fault; failed to keep a proper lookout and failed to give way to traffic when entering an intersection. |
DETERMINATIONS MADE: | Certificate Issued under section 7.36(4) of the Motor Accident Injuries Act 2017 and clause 7.497 of the Motor Accident Guidelines The findings of the assessment of this dispute are as follows: 1. For the purposes of section 3.11 the motor accident was caused wholly by the fault of the person, the Claimant. 2. For the purposes of section 3.28 the motor accident was caused wholly by the fault of the person, the Claimant. 3. Effective Date: This determination takes effect on 10 November 2022. 4. Legal Costs: The Claimant represented himself. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(d) and (e) of the Motor Accident Injuries Act 2017 (the MAI Act), about fault and contributory negligence.
The claim that is before me is a claim for statutory benefits under Part 3 of the Motor Accident Injuries Act (the Act).
Under s 3.1 of the Act benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident.
However pursuant to ss 3.11 and 3.28, an injured person is not entitled to statutory benefits beyond the first 26 weeks after the accident if the injured person only has minor injuries (within the definition in s 1.6) or if the injured person was wholly or mostly at fault for causing the accident.
The parties agree that Schedule 2, part 3(d) and (e) provides the Commission with jurisdiction to determine whether Paul Jenkins is wholly or mostly at fault.
Should it be relevant, whether for the purpose of 3.38 of the Act, the Insurer is entitled to reduce statutory benefits payable for contributory negligence with the provisions of Schedule 2 part (3)(g) of the Act.
Deklan Newling was involved in a motor vehicle accident on 10 February 2022.
Deklan Newling made a claim against QBE the third-party insurer of the vehicle.
On 31 March 2022 the Insurer made a determination that the Claimant was wholly at fault for the motor accident.
The Claimant then sought an internal review of the decision on or about 5 August 2022.
On 26 August 2022 the Insurer confirmed its earlier determination.
A dispute has arisen in connection with the claim. The claimant has referred that dispute to the Personal Injury Commission (the Commission) and it has been allocated to me for determination.
The dispute relates to the specific circumstances of the motor accident as well as a legal analysis of those circumstances.
It was agreed that the Insurer would lodge on the portal copies of all documents relied upon and further consolidated submission to enable Deklan Newling to assess the evidence and arguments of the Insurer.
Having had the opportunity to review this Deklan Newling could then provide further evidence and his arguments.
Both parties agreed that following that an assessment on the papers should be undertaken.
At the telephone conference on 30 September 2022 I made the following directions:
a. The Insurer is to lodge all of the documents relied upon and updated submissions on or before 14 October 2022.
b. The Claimant is to lodge updated evidence and submissions on or before 28 October 2022.
On 25 October the Claimant sought additional time to provide material and was given up to 8 November 2022.
On 10 November 2022 the Claimant confirmed that he did not wish to make any submissions.
Documents Considered
I have considered the documents provided in the application and the reply and any further information provided by the parties.
I have reviewed the documents lodged in the portal and confirm that I have:
a. an application and A1 to A5 and AD1 documents from the claimant, and
b. a reply from the insurer and documents R1 to R5 inclusive and AD2 (also labelled as R6) and AD3 (also labelled as R7).
The parties have confirmed that the portal contains an accurate and complete record of the documents filed in this matter.
Reasons
The Evidence
There is factual dispute in relation to the events that occurred.
The Personal Injury Claim Form provides:
“I turned right off the M7 off ramp onto Rooty Hill Road into the left-hand lane, traffic in the left-hand lane was coming to a stop and I checked that I had room to change lanes put my indicator on and as I started merging I checked my mirror and a car in the left lane I was about to merge into had closed the gap on me and I had no time to stop before hitting the ute who was stopped in traffic in the left line.”
The Ambulance Report dated 10 February 2022 provides:
“… he was travelling at approx 40 km/h and slowed down to stop for traffic lights – unable to stop quick enough due to car behind travelling close to pts tail. Person clipped metal ute tray in front of him falling onto his R side and the L knee hitting the ute tray”.
The New South Wales Police attended the scene, and the report makes reference to the claimant as vehicle one, concluding that vehicle one was responsible for the motor accident.
The report provides:
“… about 6:50 pm on Thursday, 10th February 2022, vehicle one was driving in lane 2 of 3 turning right off the M7 off ramp onto Rooty Hill Rd, North, Glendenning eastbound and into line 1 of five on Rooty Hill Rd, North, Glendenning eastbound, travelling about 40 km/h. Driver 1 went to go up the right of the stopped traffic ahead of the left side of the vehicle 1 collided with the right side of vehicle 2, it was stopped in lane 1 of 5, causing the driver one to fall off his bike”.
There are other documents including some reference to the specific circumstances of the accident, however, the Ambulance Report and the New South Wales Police Report are the most contemporaneous. The Personal Injury Claim Form includes the claimant’s version of events.
For those reasons I consider them to be the most significant.
Legal Issues
Section 3.11 provides:
3.11 Cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks
(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 provides:
3.28 Cessation of statutory benefits after 26 weeks to injured adult persons with minor injuries
(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%.
Section 3.11(1)(a) and 3.28(1)(a) contemplate two circumstances, where "the motor accident was caused wholly … by the fault of the person” or where "the motor accident was caused … mostly by the fault of the person”.
In the circumstances of “mostly at fault” within the terms of Section 3.11(1)(a) and 3.28(1)(a) then by virtue of Section 3.11(2) and 3.28(2) consideration of contributory negligence is required within the terms of Section 3.38.
It is the Insurer who is seeking to assert the application of Sections 3.11 and Sections 3.28 and the onus rests on the Insurer.
Section 1.4 of the Act includes definitions, specifically "fault" means negligence or any other tort.
The reference in sections 3.11, 3.28 and 3.38 to “motor accidents” then enlivens Section 3B(2)(a) of the CLA which expressly provides that Divisions 1 to 4 and 8 of Part 1A of the CLA apply.
Consideration
The issues to be resolved are:
a. Was the Claimant wholly at fault?
b. If not, is there any contributory negligence on the part of the Claimant?
c. If so, what is the extent of the contributory negligence on the part of the Claimant?
Section 1.4 of the Act includes definitions, specifically "fault" means negligence or any other tort.
The Insurer made reference to New South Wales Road Rules 2014 and specifically, 126 Keeping a safe distance behind vehicles;
“A Driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.”
The version noted in the Ambulance Report does not seek to attribute any responsibility to any vehicle in the adjacent line.
The version noted in the New South Wales Police Report also does not seek to attribute any responsibility to any vehicle in the adjacent decline.
To the extent that the claimant's version seeks to attribute responsibility to a vehicle in the adjacent lane, I reject that evidence.
To the extent that there is any conflict between the version of events provided by the claimant in the Personal Injury Claim Form and the account recorded in the Ambulance Report and in the New South Wales Police Report, I prefer the accounts given in the Ambulance Report and in the New South Wales Police Report.
The version noted in the Ambulance Report does include the claimant seeking to attribute some responsibility to the vehicle driving behind the claimant. This version was not maintained by the claimant in the Personal Injury Claim Form.
To the extent that there is any conflict between the version of events recorded in the Ambulance Report and in the New South Wales Police Report, I prefer the accounts given in the New South Wales Police Report.
I find that whilst the claimant was seeking to go up to the right of the stopped traffic ahead, he collided with the other vehicle.
I do not accept that this collision occurred as a result of any actions taken by any driver in the adjacent line.
I do not accept that this collision occurred as a result of any actions taken by the driver behind the claimant.
I find that the claimant was wholly at fault.
Legislation
49. In making my decision I have considered the following legislation and guidelines:
• Motor Accident Injuries Act 2017 (NSW) ("the Act")
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