O'Connor v QBE Insurance (Australia) Limited
[2021] NSWPIC 324
•27 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | O’Connor v QBE Insurance (Australia) Limited [2021] NSWPIC 324 |
| CLAIMANT: | Sandra O'Connor |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 27 August 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims dispute; was the claimant wholly at fault for the accident; section 3.28 of the Motor Accident Injuries Act 2017; claimant moving into left hand lane alleged an unidentified vehicle pushed her vehicle into collision with the insured’s vehicle; insured driver denied the presence of unidentified vehicle; contributory negligence; section 5R of the Civil Liability Act 2002; Held –having regard to consistency of Claimant’s evidence satisfied unidentified vehicle collided with the left hand side of the claimant’s vehicle pushing it into collision with the insured vehicle; claimant not wholly at fault; claimant failed to exercise reasonable care for her own safety; claimant contributed to the cause of accident by failing to keep a proper lookout and by moving into the left lane when it was not safe to do so; contributory negligence assessed at 50%; contributory negligence less than 61%; claimant not wholly or mostly at fault for accident; Manley v Alexander applied; Podrebersek v Australian Iron and Steel applied; claimant self-represented so costs not apply. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.28 the motor accident was not caused mostly by the fault of the injured person. 2. A brief statement of my reasons for this determination are attached to this certificate. |
INTRODUCTION
The Claimant Ms Sandra O’Connor sustained injury in a motor vehicle accident on
25 January 2019 (the accident).The dispute is whether for the purposes of s 3.28 of the Motor Accident Injuries Act 2017 (the MAI Act), Ms O’Connor is not entitled to receive statutory benefits after 26 weeks because she was wholly at fault for the accident.
Ms O’Connor completed an Application for Personal Injury Benefits in respect of injury sustained in the accident.
On 12 August 2020 QBE Insurance (Australia) Limited (the insurer) declined liability for payment of statutory benefits following the first 26 weeks after the accident on the basis Ms O’Connor was wholly at fault for the accident.
On 27 November 2020 an application for an internal review was submitted by
Ms O’Connor.In an Internal Review Decision dated 15 December 2020 the insurer confirmed the decision that Ms O’Connor was wholly at fault for the accident.
Ms O’Connor lodged an application in respect of a Miscellaneous Claims Assessment on 9 February 2021.
In dispute is whether there was an unidentified green vehicle which pushed
Ms O’Connor’s vehicle into collision with the insured’s vehicle. Ms O’Connor has provided a statement attesting to the involvement of the unidentified green vehicle, whilst Erin Clarke, the driver of the insured vehicle has provided a statement disputing the presence of a green vehicle at all.The dispute was the subject of a teleconference on 24 June 2021. Ms O’Connor appeared in person and the insurer was represented by Ms Henry-Jones of
Sparke Helmore, Lawyers. Noting there were passengers in both vehicles I suggested Ms O’Connor consider obtaining a statement from her son, who was a passenger in her vehicle and I suggested the insurer consider obtaining statements from the passengers in the vehicle driven by Ms Clarke. I also asked Ms O’Connor to provide a diagram indicating the position of the vehicles on the road at the time of the collision.
I directed Ms O’Connor to file any further evidence sought to be relied upon by
25 June 2021 and the insurer to file any further evidence sought to be relied upon by 23 July 2021.The matter was the subject of a further teleconference on 28 July 2021. Ms O’Connor appeared in person and the insurer was represented by Ms Anum Ul Haque of
Sparke Helmore, Lawyers. Ms O’Connor had filed a statement of Logan McNally and a computer enhanced photograph. The insurer failed to comply with the Direction I made on 24 June 2021 because of administrative oversight due to the departure of
Ms Henry-Jones from Sparke Helmore. The insurer sought an extension of time to adduce additional evidence. To ensure procedural fairness I granted the insurer a further three weeks to obtain and serve further evidence, that is, on or before
18 August 2021.The matter was again listed for a teleconference on 23 August 2021. Ms O’Connor appeared in person and the insurer was represented by Ms Anum Ul Haque. The insurer had not filed any further evidence and sought a further extension of time to obtain evidence from the other occupants of the insured vehicle. Ms Ul Haque stated the investigator had had trouble in contacting those persons. Ms Clarke had not responded to the investigators telephone calls although she had replied to the investigator by email.
I refused the insurer’s application for a further extension of time on the basis the insurer had been given ample time to obtain additional evidence. I noted the insurer had been on notice since 25 January 2019 of Ms O’Connor’s assertion that another vehicle had been involved in the collision. The application before me was filed on
9 February 2021. Ms O’Connor filed the statement of her son Logan McNally in the portal on 27 June 2021. Notwithstanding the passage of an additional eight weeks the insurer, who is not without resources, failed to secure and file any further evidence.I also discussed with the parties whether it was appropriate to deal with the matter on the papers. Ms Ul Haque informed me the insurer has been unable to establish whether the insured driver would be available to participate in an assessment conference. I was informed the investigator had sent Ms Clarke an email to verify whether she would be available but had not received a response. Ms O’Connor informed me she did not know what else she could add. Both parties consented to the matter being dealt with on the papers.
In circumstances where it is uncertain whether Ms Clarke would be prepared to participate in an assessment conference and where Ms O’Connor did not believe she had anything further to add I consider it appropriate to assess this dispute on the papers.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (the PIC) was established on 1 March 2021 and the Dispute Resolution Service (DRS) was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020.
I am a Member of the Motor Accidents Division of the PIC and cl 14B(1) of the Personal Injury Commission Regulation 2020 designates this DRS application pre-establishment, pending proceedings and cl 14B(3) empowers me to assess the claim.
Because of the date of the accident, cl 14B(4)(c) provides that the MAI Act, the Motor Accident Injuries Regulation and Chapter 7 of the Motor Accident Guidelines continue to apply.
DOCUMENTS CONSIDERED
·NSW Police Report Ref:135663601.
·Application for Personal Injury Benefits dated 3 June 2019.
·Statement of Erin Clarke dated 9 May 2020.
·Photographs of the accident scene and of Ms O’Connor’s vehicle.
·Document titled ‘Additional Facts and Points to Consider’.
·Internal Review Decision dated 15 December 2020.
·Statement of Sandra O’Connor dated 21 July 2020 together with attachments.
·Insurer’s DRS Submissions – Fault dated 14 April 2021.
·Statement of Logan McNally, undated.
·Computer enhanced photograph of the accident scene showing the position of the vehicles prior to the collision.
THE RELEVANT LAW
Section 3.28 of the MAI Act states:
“(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.”
THE EVIDENCE
Application for personal injury benefits
In her Application for personal injury benefits Ms O’Connor described the accident as follows:
“I was driving north, 2 cars were stopped at a red to turn, as I was still allowed on green I indicated to change to left lane to avoid them. I’d started turning into lane and was checking over right shoulder before fully merging as a wagon came up that lane pushing my car into the car in front. That driver continued north without stopping.”
Police Report
Police attended the scene of the accident The Police Report contains the following narrative:
“About 4pm on the 25th January 2019, the driver of VOI 1 BL 72 NC was stationary at the intersection of Princes Hwy and Croobyar Rd, Milton when VOI 1 registration ART-44d collided with the back of the vehicle. Both parties exchanged details but the driver of VOI1 stated she was hit from behind by a green VT commodore station wagon pushing into VOI 2. No registration was obtained and the driver and passengers of VOI 2 did not see the VOI. Police observed both vehicles with VOI 2 minor damage to the back tail light area and VOI 1 had damage to the right hand front drivers side. Police could not see enough damage on the rear of VOI 1 that would prove it was hit by another vehicle. There was a slight paint mark on the left side at the rear but it appeared to be white paint. Police cannot prove the vehicle was hit by another vehicle. Police spoke to the driver of VOI 2 again who stated she had looked straight away in revision mirror and did not see any green commodore station wagon, nor did one pass her.”
Statement of Sandra O’Connor
Ms O’Connor provided a statement dated 21 July 2020 where she set out the circumstances of the accident as follows:
“16. On 25 January 2019 at approx.4 pm I was driving north on the Princes Highway at Ulludulla NSW. I was going from Ulladulla to Sussex Inlet to take Logan to work.
17. At the intersection of Croobyar Rd and Princes Highway there was a red light. There were stationary cars ahead of me wanting to turn right.
18. There is a small left lane. I indicated to move into the left lane. I checked the revision mirrors and looked over my left shoulder and over my right shoulder to check for traffic (sic). There was no traffic coming in the left shoulder lane and I commenced to move into the left lane.
19. As I was half way into the left shoulder lane and as I was still moving a green station wagon came up the left lane very fast and collided with the left side of my car and pushed my car into the one in front of us. The green station wagon continued through the intersection in a northerly direction without stopping.
20. When the green station wagon hit us there was an impact. My car was forced into the rear of the car ahead for us and I had a second impact. In the course of the impact the steering wheel jerked and moved quickly. This caught and jerked heavily my right thumb.
21. I was not able to get the registration number of the green station wagon. I did not get a good look at the driver or the vehicle. I was in shock.
22. The green station wagon pushed and scraped up side of our car and struck my front passenger door [sic].
23. The driver of the station wagon was very quick.
24. After the accident the lady in the dual cab ahead of us and I both pulled over into the left hand street; into Croobyar Road.
25. The lady’s name is Erin McCabe and we exchanged details. The police were called.
26. I waited there at the location for a long time. The Police did attend and took my report. I recall the Police Officer wrote in his notebook.”
Ms O’Connor sustained an injury to her right hand and thumb and states she has now been diagnosed with complex regional pain syndrome in her right hand.
Statement of Erin Clarke
Erin Clarke provided a statement dated 9 May 2020 to investigator Bob McDougall. She had held a licence since 2013 and stated:
“11. At the time of this incident I was driving a white 2011 Toyota Hi-Lux. The vehicle is fitted with a four cylinder petrol engine and an automatic gearbox. The vehicle was free of panel or rust damage. The tyres were roadworthy. I was familiar with the controls and characteristics of this vehicle. The car is registered in my mother’s name.
12. On 25 January 2019 I had been at home and was travelling to Lake Conjola. I had not consumed any alcohol or drugs in the previous twenty four hour period. I was not using any form of electronic device.
13. My two cousins, Danielle and Sophie Mayer, were in the car with me. Danielle was in the front seat and I was driving. We were all wearing seatbelts.
14. It was about 4.00 pm and I was travelling north on the Princes Highway. At the time, the weather was fine, the traffic conditions were light, the speed limit was 50 kph, and visibility was clear. The road surface was made of bitumen in good condition.
15. I stopped at the intersection of the Princes Highway and Matron Porter Drive. This is in the form of a cross intersection with the Princes Highway travelling in a general north to south direction and Matron Porter Drive travelling in a general east to west direction. There are two lanes in each direction on the Highway and double unbroken lanes.
16. The surrounding area is a combination of residential and commercial properties and the topography is hilly. For north bound traffic there is a hill running up to the Milton CBD.
17. The intersection is controlled by a set of traffic lights.
18. I stopped at the traffic lights in lane one of two. There was a red light for north and south bound traffic. I had been stopped for a short period of time. I looked in my rear view mirror and saw a black Holden Astra bearing New South Wales registration ART44D about ten metres behind me and travelling slowly. I could see a red car behind the black one and it appeared to be at a normal distance from the rear of the black car for vehicles stopping at a red light.
19. Within a few seconds I felt a jolt to the rear of my vehicle. I looked back into my mirror and I could see the black car hard up against the rear of my car. I could see the red car still behind the black car. The red car still appeared to be a normal distance behind the black car.
20. I waited until the traffic light turned green then turned left and then left again and pulled into the carpark of the Milton Bakery. The black car followed me into the carpark.
21. I got out of my car and inspected the rear of it. There was a very minor crack to the left taillight, a small crease to the panel and the rear bull bar had been pushed in slightly on the left side.
22. I had a look at the black car and there was minor damage to the front portion of it. I saw the driver was female and she spoke to me and said “Sorry, I hit the back of your car”.
23. I had a look at the back of her car and saw there was a small dent. I knew it wasn’t from our collision but took a picture of it anyway. I had a discussion with the driver and she told me she did not have any insurance. She did not appear to be injured and I was suspicious of her. At one stage she wanted to leave and get cigarettes, but I told her I wanted her to stay. She walked up to the shops but left her car and her son.
24. I called the Police and they took about three hours to arrive.
25. Police arrived and I spoke to them and they made notes of our conversation. I was present when they spoke to the woman driver of the black car and I heard her tell the Police that “a green car had hit the back” of her car and then left the scene. That was untrue. There was no green car behind hers and I did not see or hear any impact with any green car and did not see any green car drive past my car after the collision. I told the Police this.”
Statement of Logan McNally
Ms O’Connor’s son Logan McNally was a passenger in her vehicle at the time of the accident. He provided the following statement:
“● On the 25/1/2019 I was witness to my mother’s crash where I witnessed a green commodore wagon hit the left side of my mother’s car, I was in the passenger seat so I saw the most.
· We were travelling north from Ulladulla direction when we were struck by a wagon as we were indicating to change lanes from the right to left when he come up and pushed us into the 3rd car (White Hilux).
· The commodore continued travelling north towards Milton with no signs of slowing down I can assure I felt the impact and was surprised to see when we had hit another vehicle as I thought it was only the wagon that hit us but I was surprised to see it had pushed us into another vehicle.”
Ms O’Connor’s position
Ms O’Connor also sought to rely upon a document titled “Additional Facts and Points to consider” which sets out matters she wishes to be considered in determining the dispute as follows:
“Damage to Vehicles
· If it had been front of my car to back of hers (as she claims).
· The damage to my vehicle would only be on front.
· My front bumper only has damage to the right including my fender where it had collapsed, if it was head on the front bumper would have completely fallen off.
· It’s clear to see I only impacted her car at the back left as it was just her left taillight that got smashed which proves I didn’t rear end her.
· My main damage is front right as my car was pushed into her left corner.
· There was damage/paint scratches on the left side of my car as I was pushed, Hence my front right corner impacting her car left sided.”
The insurer’s position
The insurer submits the lack of damage to Ms O’Connor’s vehicle is not consistent with being impacted by a green station wagon. Furthermore, the insurer submits
Ms O’Connor is wholly at fault because there is no evidence to confirm that
Ms O’Connor’s vehicle was impacted by an unidentified vehicle or an unidentified vehicle contributed to the accident.
WAS MS O’CONNOR WHOLLY OR MOSTLY AT FAULT
Firstly, it is agreed Ms O’Connor was injured in an accident involving the use or operation of a motor vehicle in accordance with s 1.4 of the Act.
The question is whether Ms O’Connor was wholly at fault. If I was to conclude that the version provided by Ms O’Connor and her son of the involvement of a green Commodore wagon was fictitious, then I would have no hesitation in finding she was wholly at fault. However, I do not.
On the day of the accident, according to the Police Report, Ms O’Connor informed the attending police officer she was hit from behind by a green VT commodore station wagon pushing her into the vehicle driven by Ms Clarke. Other than the allegation that the green commodore hit the rear of Ms O’Connor’s vehicle that version of events is otherwise consistent with her statement and the statement provided by her passenger, Logan McNally. Both Ms O’Connor and Mr McNally have provided statements where they assert the green commodore collided with the left-hand side of Ms O’Connor’s vehicle causing the front right hand side of her vehicle to collide with the rear left hand side of the vehicle driven by Ms Clarke.
Ms O’Connor states:
“As I was half way into the left shoulder lane and as I was still moving a green station wagon came up the left lane very fast and collided with the left side of my car and pushed my car into the one in front of us”.
The fact that the attending police officer failed to observe damage to the rear of
Ms O’Connor’s vehicle is not surprising. She does not allege any collision with the rear of her car but asserts the green commodore scraped against the left-hand side of her car.The damage sustained to both vehicles is also consistent with Ms O’Connor’s version of events. Ms O’Connor stated the damage to her vehicle due to the impact with the vehicle driven by Ms Clarke was to the front right-hand side of her car. Ms Clarke stated the damage to her vehicle was to the left taillight, a small crease to the panel and a slight indentation to the rear bull bar on the left side.
The photograph marked A8 shows some damage to the front left-hand side of
Ms O’Connor’s vehicle above the wheel arch and the photograph marked A6 shows a small scrape to the middle of a door panel on the left-hand side of that vehicle. This damage to the left-hand side of Ms O’Connor’s vehicle is consistent with another vehicle, in this case the green commodore wagon, impacting the vehicle driven by
Ms O’Connor on the left-hand side whereby her vehicle was pushed to the right and into collision with the rear left-hand side of Ms Clarke’s vehicle.The computer enhanced photograph filed by the Claimant in the portal on 27 June 2021 is a schematic representation of the position of the vehicles on the road shortly before the accident and it depicts the accident as described by the Claimant.
I am satisfied of the presence of a green commodore wagon which collided with the left-hand side of Ms O’Connor’s vehicle and pushed it to the right causing it to collide with the rear left-hand side of the vehicle driven by Ms Clarke.
I do not find the Claimant to be wholly at fault.
If Ms O’Connor was not wholly at fault did Ms O’Connor contribute to the cause of the accident?
Section 5R of the Civil Liability Act 2002 (CLA) sets out the principles that apply in determining the question of contributory negligence. Subsection 5R(2) provides the following:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
In Manley v Alexander [2005] HCA 79 (Manley), the majority in the High Court stated at [12]:
“...the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what his happening in the vicinity of the vehicle in time to take reasonable steps to react to those events…”
and
"Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require 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.”
The reasonable care duty was reiterated in Vairy v Wong Shire Council [2005] HCA 34, 59 ALJR 492. The Court stated that the duty of the driver of a motor vehicle to users of the roadway is to take reasonable care for their safety having regard to all the circumstances of the case.
The risk of harm was foreseeable and a reasonable person in Ms O’Connor’s position ought to have exercised reasonable care for her own safety by keeping a proper lookout before moving into the left lane.
Even accepting that the green commodore wagon was travelling at speed if the Claimant was keeping a proper lookout before attempting to move into the left lane, she should have seen that vehicle approaching and taken steps to give way to that vehicle or to stop. In these circumstances I am satisfied Ms O’Connor did contribute to the cause of the accident.
If yes, what is the degree of that contributory negligence, keeping in mind that a finding of contributory negligence greater than 61% means that Ms O’Connor was mostly at fault?
In Podrebersek v Australian Iron and Steel (1985) 59 ALR 529 the High Court at [10] stated:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage …and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case.”
In assessing the degree of departure from the standard of care of the reasonable person, and in the absence of any other evidence from the driver or occupants of the green commodore wagon I am of the view the contributory negligence of Ms O’Connor in moving into the left lane when it was not safe to do so was 50%.
To be disentitled to statutory benefits under s 3.28 of the MAI Act it is necessary to find that the contributory negligence of Ms O’Connor was more than 61%.
I find pursuant to s 3.28 of the MAI Act that Ms O’Connor was not wholly or mostly at fault for the accident.
CONCLUSION
I find pursuant to s 3.28 of the MAI Act that Ms O’Connor was neither wholly, nor mostly at fault for the accident.
As Ms O’Connor is self-represented there are no legal costs to be assessed.
Susan McTegg
Member (Motor Accidents Division)
Personal Injury Commission
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