Oudicho v Cic Allianz Insurance Limited
[2022] NSWPIC 152
•11 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Oudicho v CIC Allianz Insurance Limited [2022] NSWPIC 152 |
| CLAIMANT: | Mikaiel Oudicho |
| INSURER: | CIC Allianz Insurance Limited |
| MEMBER: | David Ford |
| DATE OF DECISION: | 11 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Whether for the purposes of sections 3.11 and 3.38 of the Motor Accident Injuries Act 2017 (MAI Act); the insurer is entitled to cease statutory benefits payable in respect of the motor vehicle accident, the claimant was driving his motor vehicle along Fifteen Avenue West Hoxton Park, there was heavy traffic at the time and the vehicles immediately in front of the claimant had come to a halt; it then transpired the claimant was unable to bring his own vehicle to a halt and collided with the rear of the insured’s motor vehicle; Held- for the purposes of sections 3.11 and 3.28 of the MAI Act the motor accident was caused wholly by the fault of the injured person. |
| DETERMINATIONS MADE: | 1. For the purposes of sections 3.11 and 3.28 the motor accident was caused wholly by the fault of the injured person. 2. Effective Date: This determination takes effect on 11 April 2022. 3. Legal Costs: The claimant is unrepresented and therefore, there is no entitlement to payment of legal costs. |
REASONS FOR DECISION – MISCELLANEOUS CLAIMS ASSESSMENT
Issued in accordance with section 7.36(4) 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)(e) of the Motor Accident Injuries Act 2017, about whether for the purposes of section 3.28 (statutory benefits after 26 weeks to injured persons and persons most at fault, or to injured persons with minor injuries).
Background information to the claim
The section of the Act which is under dispute is section 3(11)(1)(a) and statutory benefits under section 3.28(1)(a).
The insurer claims the claimant was wholly at fault in the accident and the insurer has ceased, after 26 weeks on weekly payments under section 3(11)(1)(a) and statutory benefits under section 3.28(1)(a).
The insurer undertook an internal review, and a statement of reasons is attached to the application form dated 1 September 2021.
The claimant seeks to challenge the Determination.
Documents considered
I have considered the documents provided in the Application and the Reply.
I was also sent a further statement by the claimant dated 13 February 2022.
Submissions made by the claimant
Firstly, by way of background, on 28 April 2021 the claimant was driving his motor vehicle along Fifteen Avenue, West Hoxton Park, NSW.
There was heavy traffic at that time and the vehicles immediately in front of the claimant had come to a halt.
It then transpired the claimant was unable to bring his own vehicle to a halt and collided with the rear of the insured’s motor vehicle.
The claimant lodged an application for personal injury benefits dated 29 April 2021 and has provided the following description of the accident:
“On 28 April 2021 I was driving my car of Fifteen [sic] Avenue, West Hoxton Park, around 8:50am, there was very heavy traffic because many trucks heading towards Cowpasture [sic] Road, an M7. Suddenly, the van in front of me (registration CM69VC) stopped because the truck in front of the van suddenly stopped. I couldn’t stop or avoid, I hit the van because he suddenly stopped.”
In the initial statement of the clamant dated 9 November 2021, the claimant provides information regarding his time off work and loss of income but does not provide any information regarding the circumstances surrounding the subject accident.
In this second statement dated 13 February 2022 the claimant states the following:
“I am pleased to submit you my declaration in regard to vehicle accident occurred on 28 April 2021. I confirm that on the above date, around 8:50am,
was driving my car (Nissan Navarro registration number CC59DL) on Fifteen Avenue, West Hoxton Park, NSW. There was very heavy traffic on Fifteen Avenue due to an accident on the M7, so many trucks and vehicles changed their route [sic] to Fifteen Avenue. While driving, there was a van in front of me (registration CM69VC) and suddenly, without slowing down, the van unexpectedly stopped, and I tried to stop or avoid, but couldn’t, so I bumped in from the back, the van from the back. For this reason, I don’t accept to be fully my fault. Because the vehicle in front of me. I suffered a back and neck pain, and the pain increased after 2 days.”Thereafter in the statement the claimant provides information regarding medical treatment and loss of income.
Submissions made by the insurer
I refer to the submissions lodged by the insurer dated 20 December 2021.
I refer to paragraph 10. Firstly, the insurer notes that “the claimant’s application is absent any evidence as to liability and/or fault. Rather, the claimant’s submissions and annexures pertain to his injuries, lack of treatment and inability to work in his pre-injury capacity following the accident”. Irrespective, noting that the application has been lodged in the context of a miscellaneous claims assessment for dispute, the insurer presumes that the claimant is seeking for a determination of whether he was wholly or mostly at fault.
I refer to paragraph 11. The insurer appreciates that “it bears the owners of proving, on the balance of probabilities, that the claimant was wholly at fault for the subject accident” and in this regard, refers to the objective evidence which confirms same, as follows.
The insurer then refers to the description of the accident provided by the claimant in his application for personal injury benefits referred to above.
I also refer to paragraph 13, where the claimant has advised various treatment providers that he had collided with the rear of the insured’s motor vehicle after the said vehicle had stopped suddenly. Furthermore, the police report dated 16 June 2021 confirms rear damage to the insured’s vehicle which has been “stationary – in road lane”. Furthermore, photographs of the claimant’s vehicle are consistent with his vehicle having collied with the rear of the insured’s motor vehicle.
I further note the submission at paragraph 16,
“it is clear, the claimant’s own evidence, that he reeled into the vehicle travelling immediately in front of him because he failed to avoid it. This is a simple rear end collision, entirely caused by the fault of the claimant.”
I refer to paragraph 17,
“As the driver of the motor vehicle on the roadway, the claimant is under obligation to take reasonable precautions for the safety of others. Relevant to the subject accident, the claimant has clearly not travelled a safe distance behind the vehicle in front to enable him to bring his vehicle safely to a holt without causing a collision. As a corollary of this, the claimant has evidently not maintained a proper lookout to enable himself to maintain a safe distance behind the vehicle travelling in front or take evasive action to avoid a collision.”
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
(a)Motor Accident Injuries Act 2017;
(b)Motor Accident Injuries Act Regulation 2017, and
(c)Motor Accident Guidelines 2020.
REASONS
I have considered the documents provided in the Application and Reply and any further information provided by the parties.
Was the motor accident caused wholly by the fault of the claimant?
I find the claimant has failed to keep a proper look out and maintain a safe distance behind the vehicle travelling in front of him, particularly in circumstances where he has had prior knowledge of a bank up of traffic in front of him which would have alerted him to reduce his speed and be prepared to bring his own vehicle to a holt.
There is also the fact the insurer’s driver was able to bring his vehicle to a halt and was stationary when it was rear-ended by the claimant’s vehicle.
FINDINGS
I therefore find the accident of the 28 April 2021 was caused wholly by the fault of the claimant.
COSTS AND DISBURSEMENTS
The claimant is unrepresented and therefore, there is no entitlement to payment of legal costs.
CONCLUSION
For the purposes of sections 3.11 and 3.28, the motor accident was caused wholly by the fault of the injured person.
Effective Date:
This determination takes effect on 11 April 2022.
Legal Costs:
As the claimant is unrepresented, there is no entitlement to the payment of legal costs.
David Ford
Member (Motor Accidents Division)
Personal Injury Commission
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