Parker v Allianz Australia Insurance Limited
[2024] NSWPIC 388
•22 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Parker v Allianz Australia Insurance Limited [2024] NSWPIC 388 |
| CLAIMANT: | Brett Nicholas Parker |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 22 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims dispute whether claimant is wholly or mostly at fault; sections 3.11 and 3.28; contributory negligence; section 3.38; claimant riding a motorcycle with a pillion passenger as part of a group of motorcyclists; insured driver driving a utility ahead of, and in the same direction as, the claimant; the insured driver slowed and turned right towards a rural property gate; whether an indicator was activated and if so, when; police body worn footage and witness evidence considered; Held – the insured did activate the right hand indicator, however, only immediately before the turn was executed therefore meaning the claimant had no reasonable opportunity to avoid a collision with the insured vehicle; claimant was not wholly or mostly at fault for the accident and 0% contributory negligence assessed. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act2017 (the Act), the Personal Injury Commission’s assessment is: 1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 2. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 3. In accordance with s 3.38 of the Act, the claimant’s weekly payments of statutory benefits are to be reduced by 0% on account of the claimant’s contributory negligence. 4. The amount of the claimant’s costs in the matter is $3,500 plus GST. |
STATEMENT OF REASONS
INTRODUCTION
Mr Brett Nicholas Parker (the claimant) has lodged a claim for statutory benefits with Allianz Australia Insurance Limited (the insurer) following a motor accident occurring on 29 July 2023. The claimant was riding his motorcycle when a collision incurred with a Ford Utility near Grafton NSW.
A dispute has arisen between the parties as to whether the claimant is wholly or mostly at fault in respect of the accident.
It is apparent that liability for payments of statutory benefits was initially accepted by the insurer, however, by way of notice dated 9 November 2023, the insurer advised of their decision to deny payments beyond 52 weeks on account of their finding that the claimant was mostly at fault.
An internal review was requested and the resultant determination dated 20 December 2023 affirmed the original decision.
The claimant subsequently lodged an application with the Personal Injury Commission (Commission) to determined the dispute. That dispute has been allocated to me as a Member of the Motor Accident’s Division of the Commission to determine.
I have held two preliminary conferences with the parties. On 13 February 2024 I was advised that relevant evidence remained outstanding, including information from the police following the issuance of a Direction for Production upon the NSW Police. I made directions that the parties provide me with paginated and indexed bundles of all documents relied upon.
At the second preliminary conference on 7 May 2025 it was agreed that the matter was ready to proceed to assessment and that it was appropriate for me to make a determination “on the papers”.
LEGISLATIVE FRAMEWORK
Section 3.11 of the Motor Accidents Injuries Act 2017 (MAI Act) provides as follows:
“(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 52 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 of the MAI Act provides as follows:
“(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 52 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 52 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.”
Section 3.38 of the MAI Act provides that contributory negligence applies to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 52 weeks after the time of the motor accident.
Pursuant to Schedule 2, cl 3(d) and (e) of the MAI Act, a dispute relating to ss 3.11 and 3.28 are declared as miscellaneous claims assessment matters for the purpose of Part 7 of the MAI Act. Clause 3(g) of Schedule 2 also provides that a dispute relating to s 3.38 is a miscellaneous claims assessment matter for the purposes of Part 7 of the MAI Act.
Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment.
DOCUMENTATION
In reaching my determination I have considered all documents provided by the insurer in their bundle of documents lodged on 28 March 2024, and the claimant in the bundles lodged on 11 January 2024 and 2 May 2024.
SUMMARY OF RELEVANT EVIDENCE
Application for personal injury benefits dated 8 August 2023
The claimant provided a description of the accident as follows:
“I was riding along Armidale Road heading towards Armidale from Grafton and I approached a white ute who was travelling in the same direction as me. As I approached the ute, the driver slowed down and pulled onto the left hand shoulder of the road, allowing me sufficient room to pass him in my lane. The driver, without indicating, then did a right hand turn directly in front of me.
I braked heavily and collided with the front right hand drivers side of the ute. This resulted in a collision with my girlfriend (pillion) and I hitting the car, with us and the bike flying over the vehicle landing on the right hand side shoulder of the road.”
Application for personal injury benefits dated 10 August 2023 – Candice Pringle
Ms Pringle is the claimant’s girlfriend. In her claim form, she provides the following description:
“Brett, the rider, and I, as the pillion, were travelling along a country road about 30 minutes out of Grafton when we came to a white ute who was travelling slower than the speed limit, in the same direction as us. The driver slowed down and veered over the left side of the road so Brett proceeded to pass the ute. As we passed, the driver then turned a hard right without indicating. We contacted with right side of the ute with our left side….”
NSW Police material
The file includes a number of photographs. It demonstrates the insured vehicle sustained relatively significant damage to the driver’s side, starting approximately from the centre of the back passenger door and extending to the front wheel arch. The vehicle is positioned at a right angle to the roadway, on the right side facing away from the road. The vehicle is around three metres from the roadway.
The claimant’s motorcycle is depicted in shrubbery to the side of the road, with what appears to be very extensive damage.
Photographs of the roadway demonstrate it to be a sealed rural road that is flat and straight with no visual obstructions. Photographs that depict both the insured vehicle and the roadway demonstrate a straight stretch of road, with a broken white line separating the two lanes.
The “COPS” report narrative of the accident is as follows:
“About 9:00am on Saturday 29th of July 2023 VEH2 [insured] was travelling in a southerly direction towards Nymboida when it slowed down to turn right into a paddock gate. As the vehicle was slowing down its brake lights activated and the driver indicated to turn right. Shortly after, the rider of VEH1 [claimant] attempted to overtake the now fully turned VEH2 which resulted in the rider colliding with the driver side door of VEH1. As a result of the collision both the rider and pillion passenger were ejected from the motorcycle and landed approximately 50m from the collision point. The rider sustained injuries to his left leg and complained of chest pain. The pillion passenger sustained multiple fractures to her left leg and had suspected pelvic injuries.
About 9:45am the same day Police attended the scene and observed NSW Ambulance Paramedics treating the riders of VEH1. Police activated their body worn video cameras and asked the driver of VEH2 his version of events providing the above. The driver was subject to a breath test to which obtained (sic) results of 0.000. Further checks into the driver revealed that he had refused licence to which he was issued with Field Court Attendance Notice number 1493911 to attend Grafton Local Court.
Police spoke with the riders riding behind VEH1 who provided a similar version of events as above stating that they believed VEH2 slowed down and indicated as a signal for the motorcycles to overtake
…”
The file includes a Court Attendance Notice and Facts sheet in respect of the abovementioned “refused licence”. The facts sheet includes a summary of facts, that relevantly provides as follows:
“On Saturday the 29 July 2023 about 09:40am, the accused was travelling South on Armidale Road Blaxlands Creek NSW. At the time the accused was travelling at a slow speed intending to enter a paddock driveway on the western side of the roadway.
At the same time a group of motorcycles approached from the rear of the accused also travelling in a southerly direction. As the accused approached the entrance, he indicated his intention to turn and turned right towards the paddock entrance. The first rider of the group travelling behind the accused proceeded to overtake the slower moving vehicle as the rider thought the accused was signalling for him to pass.
As a result, the motorcycle collided heavily with the Drivers side doors of the vehicle which had turned across the North Bound lane, throwing the rider and his pillion passenger from the motorcycle off the roadway. Both rider and pillion passenger received serious, (although non-life threatening injuries), requiring them to be air lifted to Hospital with leg injuries.
The accused revealed that he had been residing overseas in Ireland for the past 12 months and had only recently returned to Australia after his sister was tragically killed in the Singleton bus crash disaster.
Checks on the licence states of the accused revealed that his NSW licence (XXXX) was currently endorsed as refused as of 18 July 2023 with an application being considered on or after 18 January 2024.
The accused was cautioned and asked a number of questions in relation to his licence. He stated that when he returned from Ireland he attended the Grafton Transport NSW office on the 18 July 2023 in an attempt to obtain his NSW drivers licence which had expired (08/09/2022) while he was overseas. At this time the accused licence application was refused due to previous traffic offences resulting in accumulation of excess demerit points.
When further questions the accused stated that he knew he shouldn’t have been driving however had only been driving at the time of the incident to remove some straying cattle of [sic] the roadway which had escaped from a nearby paddock.
…”
Statement of claimant dated 19 April 2024
The claimant explains that at the time of the accident, he was part of a group of social bike riders heading in a Southwest direction having left Grafton at about 8.00am. He was riding a BMW motorcycle, model S1000XR.
He states that he believes the speed limit on the relevant stretch of road to be 100kmph. He then states:
“…I would have been travelling at about 100km per hour when the Ford Motor Vehicle slowed down to approximately 70km per hour, without braking and veered lightly to the left of the road.
There would have been two or three hundred metres of open roadway from the Crest to the point at when the Ford slowed down slightly.
As the Ford Motor Vehicle was slowing down slightly to about 70 km per hour and veering slightly to the left of the road, I believed that the Ford was slowing down to let me overtake.
I then began an overtaking manoeuvre and I do not recall whether I cross the broken lines to the other lane to execute the manoeuvre, but it is possible I did so.
As I was undertaking the manoeuvre to overtake the Ford Motor Vehicle, the driver at the same time put on the brakes, indicator and proceeded to execute a hard right turn which caused me to collide directly into the side driver’s door.
Given that the driver of the Ford motor vehicle proceeded to brake, indicate and turn at the very last moment, I had no time to avoid the collision.
I immediately applied my brakes but there was insufficient time for me to avoid colliding with the Ford, given the lack of warning by the driver of the Ford that they were about to execute the turn at that time.
Immediately before the impact I would have been travelling at about 70km per hour and I believe the Ford Motor Vehicle would have been travelling at slightly less than 70km per hour when the driver suddenly put on his brake, indicator and proceed to execute a turn at the same time.
I believe at the time of the accident the driver of the Ford Motor Vehicle may have missed the gate that he was looking for as I subsequently found out he was trying to turn into a gate.”
Statement of insured driver, Jasper Muldoon dated 8 February 2024
The insured is 28 years of age. He has previously held a heavy rigid NSW drivers licence.
He states that he has not been charged with any serious driving offence, however, has received a number of on the spot fines for offences such as speeding, mobile telephone use, red light infringements. He acknowledges that at the time of the accident he did not hold a valid drivers licence.
In respect of the motor accident the insured states he was driving his own vehicle being a white Ford Ranger tray back utility. He had been at his parents’ residence in Coutts Crossing on the morning of the accident.
He left the residence after his parents having received a call advising that cattle were roaming on the road at another property that they lease. He states: “I was going up to that property to check if the cattle were ours and, if they were, to put them back to where they belong.”
He describes the accident site as being approximately 200 metres from the entrance to 3180 Armidale Raod, Blaxlands Creek.
He states the roadway has a lot of blind corners and a dangerous crest before a straight section of road lasting approximately 200 metres. He states that the accident occurred on the straight section. He describes being very familiar with the road, having lived on it for 17 years. He notes that the speed limit is 80kmph.
From paragraph 28 of the statement he states:
“Immediately before the accident, I had noticed a group of motorcyclists in my rear-view mirror travelling in the same direction as me.
I recall putting my right indicator on and slowing down to turn right into the entrance of the property. I was concentrating on entering the property. I estimate that the fist [sic] motorcycle that was travelling behind me, was about 100 meters behind me when I first indicated and slowed down. I was about 100 meters from the turn when I first indicated and about 75 metres from the turn when I first braked.
I recall that I proceeded to turn right across the other lane and then a motorcycle impacted with my vehicle. I did not see any motorcycle overtaking me at the time. I was concentrating on safely crossing into the property and ensuring no other vehicles were approaching from the opposite direction. I was travelling about 15kph when the accident occurred.
I cannot recollect what happened immediately after the impact, I was in shock.
I believe the driver of the motorcycle to be at fault. I indicated, slowed down and braked before slowly turning right. I was shocked that then T-boned my vehicle.”
The insured explains that he intends on pleading guilty to the charge regarding being unlicensed.
Statement of Matthew Armstrong dated 22 April 2024
Mr Armstrong was a witness to the motor accident. He was part of a group of motorcycle riders to which the claimant was a part of. It is stated there were around 10 to 12 riders. He states that there were around three or four riders in approximately 300 or 400 metres in front of the claimant.
He states that he was behind the claimant with another rider behind him. He states that he observed the insured vehicle in front of the claimant.
From paragraph 5 of the statement Mr Armstrong states:
“Prior to the accident, the three other riders in front of Brett had overtaken the Ford. The riding group had been travelling behind the Ford vehicle for a few kilometres before the accident occurred so the driver should have been aware of the riders behind him. Leading up to the accident, we came to a crest and went over the crest and went down onto a flat stretch of straight road. The road was a two lane road, one lane each way, there were double lines to not overtake but then they became broken lines to allow overtaking on the flat stretch of road. This is when Brett started to manoeuvre to overtake the Ford.
The speed limit was about 100 kmph and the biking group had been travelling just under the speed limit as had the Ford vehicle.
The Ford vehicle has then started to slow down on the flat stretch of road, Brett has then gotten closer to the rear quarter of the vehicle and began to execute an overtaking manoeuvre as the vehicle was slowing down.
At this time, I was about 20 meters back from the Ford and about 10m behind Brett. As I saw Brett tyring to overtake the Ford on the right hand side of the Ford, the Ford has suddenly braked and started to turn right as Brett was attempting to pass the Ford vehicle.
Brett has then collided with the driver’s side of the vehicle.
I do not recall, at this time, seeing an indicator on the vehicle but the Ford suddenly braked and started turning.
It appeared that the Ford was trying to do a quick hard turn to the right and the driver of the Ford had suddenly put on the brakes to execute the turn.
Prior to the collision, I was also going to follow Brett to overtake the Ford.
However, due to driver of the Ford braking at the last moment as he was turning, I was forced to suddenly brake to avoid colliding with the Ford.”
Mr Armstrong explains that after the accident he realised the insured was attempting to turn into a gate on the other side of the road to enter a paddock.
He states that he did not see the brake light come on until the claimant was close to the rear quarter of the vehicle and he did not recall an indicator come on.
Record of interview between investigator, Stewart James, and Constable Jun Kim of NSW Police of 11 September 2023
This record of interview is included in an investigation report of Lee Kelly and Associates dated 25 September 2023.
Constable Kim was one of the officers that attended the accident scene. The Constable was wearing a body worn camera and obtained versions of events from witnesses. The investigator asked what they said and it is summarised that the witnesses said that the insured stopped in the middle of the road, indicated to turn right into the paddock and then the claimant has overtaken and the vehicle turned right causing a collision.
He describes the insured driver as being quite remorseful about the situation and had his mother and father at the scene to comfort him.
The Constable was not sure whether a blood sample was taken from the claimant, noting that he was transported to a hospital in Queensland, which causes some logistical issues. It is mentioned, however, that the group of motorcyclists were breath tested at a Random Breath Test station earlier that morning and all were negative.
The Constable was asked whether the accident occurred in the southbound or northbound lane. The Constable’s answer is not transcribed in such a way where the answer is clear, however, it can be ascertained that it was thought that the accident happened more towards the middle of the roadway, “maybe possibly” closer to the Northbound lane.
In respect of the speed limit the Constable stated that it was a main road and thought it was “a hundred, a hundred or a hundred and ten.”
The Constable stated that he thought the claimant could have “definitely” avoided the collision. It was confirmed, however, that the claimant had not been spoken to by police.
Sketch of the insured driver dated 26 September 2023
Whilst the statement of the insured driver attached to the investigation report is not signed, a signed sketch is provided. It depicts a straight stretch of road with the insured vehicle turned to the right. Several squares are drawn behind the insured vehicle depicting a group of motorcycles. The sketch as the claimant’s motorcycle colliding with the driver’s side of the insured vehicle, in the opposite lane (northbound).
NSW Police body worn footage
There is several hours of body worn police footage taken in the aftermath of the motor accident at the accident site, and some footage taken when an officer is in a police vehicle.
The interviewing by the officers is somewhat haphazard and not optimal in that detailed questions were not asked and in one instance two witnesses were interviewed in the presence of each other. Nonetheless, the footage is of assistance in reaching a determination.
The insured driver was questioned. From my observations I formed the impression that the insured driver was a truthful young man making a sincere effort to assist police with their enquiries. He was forthcoming about his suspended licence and was open about his travel plans. I also formed the impression that the Police considered the insured driver to be a reliable witness. The insured was questioned by different officers, however, to illustrate his version of events I refer to body worn footage identified as IMS ID-16504210-0006. The exchange included words to the following effect:
“I was coming this direction towards Nymboida and I was turning into this gate here, indicated, the bikes were behind me but that crest is very bad and you can’t really see them until they come over late. And as I turned they hit me, basically. I don’t know if they thought I was indicating to go around.
Q: Were the bikes following you for a bit or were you doing a slow speed and they were coming up behind you?
Exactly, the first batch passed me here because there was a first and I thought that was the last of the bikes and then it just happened so quick I didn’t see them.
Q: How fast do you reckon you were going?
Probably like 60, 70 I’d probably say, but I pulled up, see I pulled up I turned and that’s when and they would have collided with me so it wouldn’t have been fast.
Q: Did you remember whereabouts on the roadway you were?
Exactly, exactly where the car finished. I had to put it in park to get out.
Q: Did the bike hit you like a T-bone or did they sort of slide and hit you sideways?
I can’t remember but all I could hear was, when I turned, was bang and I just remember feeling the heat on my face and I don’t know what happened first, if the bike flips over the bonnet…”
The insured goes on to discuss his travel plans, including an intention to fly out of Australia the next day, and the fact that he was driving due to it being said that cattle were out on the road and it is dangerous to have cattle on such a road.
The insurer submits that the insured’s cancellation of his licence is not causative of the accident.
In a different interview with a different officer (ID: IMS ID-16505355-0010), the insured stated words to the following effect:
“I was just turning into this gate here. I indicated and then as I turned they ran into my driver’s door.
Q: Just to confirm, you were travelling this way?
Towards Nymboida
Q: You indicated right to come to this gate here and they’ve collided with you?
Yep. I don’t know if they thought I was indicating for them to go around and it’s a stretch of road, and it’s the only stretch of road and then next minute they’re just you know.
Q: Do you know how fast you were travelling?
Not fast at all no, because I remember that first batch because that’s why I was up here because there was a cow on the road and I was looking for her so the first batch they went around me and I thought that was the last of the bikes.”
As noted above, two witnesses were interviewed by police at the same time. The first was Matthew Armstrong, who was a motorbike rider forming part of the group travelling with the claimant. In body worn footage marked IMS Id-16505355-0010 Mr Armstrong states words to the following effect:
“I was travelling behind them. We were travelling along, back there over the ridge of the hill there was a nice clear run of a ride to pass. He’s gone to pass and as he was going down I didn’t see an indicator on, I saw brake lights and he’s gone to pass and as he’s come just along the side of it he’s turned right to turn into where the gate is, when to turn in and they’ve collided.
Q: You were directly behind them?
Yes”
Mr Matthew Osman, also a motorbike rider forming part of the claimant’s group, was present during the above exchange. After hearing Mr Armstrong, Mr Osman states words to the following effect:
“I was 100m behind him. Same sort of similar story. I saw him indicate. As he’s gone to pass him he’s indicate and then they hit. So there’s brakes and indicator but it would have been a short indicate. I doubt he’s even seen him indicating long.”
SUBMISSIONS
Claimant’s submissions
The claimant’s updated written submissions dated 29 April 2024 assert the insured driver should be found solely at fault for the accident.
It is submitted that the insured driver attempted to make a sharp right hand turn to the other side of the road, after suddenly braking at the last minute when the claimant was already adjacent to the rear driver’s side of the vehicle.
It is submitted that the group of motorcycles were following the insured for a “considerable period of time prior to the accident.” In addition, three riders had overtaken him and in such circumstances the insured should have been aware of the bike riders in close proximity behind him and should have exercised appropriate care and attention.
In respect of credibility, the claimant submits the insured “…was driving on a suspended licence. Given his history of various traffic infringements and his willingness to continue driving while on a suspended licence, the credibility of the insured as a witness must be raised.”
Insurer’s submissions
The insurer’s submissions of 27 March 2024, assert that contributory negligence ought be assessed at 75%. Accordingly, the claimant should be found to be mostly at fault for the purposes of the MAI Act. The insurer submits that such finding is supported by the following:
(a) attempting to overtake another vehicle when it was unsafe to do so;
(b) attempting to overtake another vehicle by passing on its right hand side, after the driver had signalled his intention to make a right hand turn;
(c) failure to steer and control vehicle so as to avoid an accident when danger threatened, and
(d) failure to brake soon enough or at all.
The insurer disputes the suggestion that the insured driver pulled onto the left shoulder of the road, however, it is agreed that the insured driver slowed down. It is noted that the body worn footage does not contain a suggestion that the insured driver pulled to the left.
The insurer submits hat I would not find that the insured pulled to the left, noting the application form versions from the claimant and Ms Pringle are inconsistent with the accident site and the versions provided by all others.
The insurer submits: “…the allegation by the claimant and Ms Pringle that the insured driver pulled left, is consistent with the insured’s assumption that the claimant has taken the activation of his indicator as a signal to pass, rather than his intention to turn.” The insurer submits that this is consistent with the relevant paddock gate not being visible from the roadway.
The insurer relies on the statement of the insured that he was 100m from the gate when he first indicated and 75m from the gate when he braked.
The insurer also submits that the versions of Mr Armstrong and Mr Osman should be given little weight in circumstances where they were interviewed together. The insurer suggests that after listening to Mr Armstrong, Mr Osman adopts the version provided by Mr Armstrong.
The insurer relies upon the case of Cortiana V Guihot [2004] NSWCA 348 (Guihot) where the Court of Appeal declined to disturb a verdict for the defendant. It involved a car towing a trailer that performed a U-turn across the path of an overtaking motorcyclist. The insurer refers to the finding of the Court that:
“…undoubtedly a driver in the position of the respondent has a duty to take reasonable care to check prior to making a turn to the right that no vehicle is overtaking in the adjacent lane. However, the duty is one of reasonable care. The driver is not liable in negligence merely because a collision occurs…The respondent’s evidence in chief was that he looked in the rear vision mirror prior to the making the turn… He was then travelling at 5-15kph.”
The insurer concedes that the insured driver did not keep a proper lookout, consistent with his statements that he did not see the claimant before he turned.
The insurer submits that I would find that the claimant was no notice of an intention of the insured to turn through the slowing of the vehicle and indicating, however, “the claimant mistook the indicator as a signal to pass.”
It is submitted that I would make a finding of contributory negligence of 75% on the following basis:
(a) attempting to overtake another vehicle when it was unsafe to do so;
(b) attempting to overtake another vehicle when it was unsafe to do so;
(c) failure to keep a proper lookout;
(d) proceeding at an excessive speed in the circumstances;
(e) failure to steer and control vehicle so as to avoid an accident when danger threatened, and
(f) failure to brake soon enough or at all.
Further submissions
During the course of completing this determination I formed the view that further submissions were required to cover an issue covered in the evidence but not referred to in submissions. In this regard, I noted in the body worn footage that the insured driver stated that the collision occurred “exactly there” where his vehicle ended up. I noted that the footage depicted the vehicle to be beyond the gate. I then stated:
“…if the above assumptions as to positioning of the date and collision impact point are accepted as set out above, I invite the parties to respond to a possible finding that the fact the collision impact site is beyond the gate is consistent with a sudden indication and turn to the right by the insured driver. In this regard, I note the tall grass obscuring the fence and gate.”
The insurer responded in submissions dated 19 June 2024, the insurer notes it is not agreed that the impact on the roadway is “in line” with the resting insured vehicle. The insurer submits that in circumstances where there is no expert evidence as to the point of impact, the determination is not open to me to make.
The insurer also notes that photographic evidence demonstrates a significant, high velocity impact. It is stated: “the trajectory both vehicles took after the impact and before the respective resting positions, is a matter for accident reconstruction expertise and that evidence is not before the PIC.”
It is further submitted: “the evidence supports a finding that the insured turned towards the gate at his parent’s property, form a road he was very familiar with, having lived on that road for 17 years.”
The suggestion the insured made a sudden indication is disputed. The insurer reiterates the submission that the claimant mistook the insured’s indication as an invitation to overtake rather than it being an indication to turn.
In reply submissions dated 26 June 2024, the claimant agrees with the suggestion that the impact on the road was in line with the resting insured vehicle. The body worn footage is referred to where the claimant is very clear as to where he says the accident occurred. Therefore, a reconstruction expert would not be of assistance when the insured is very clear as to where he says the accident occurred.
It is submitted that the finding of the point of impact may readily be made on the insured’s evidence. Further, a finding of fact that the collision impact site is beyond the gate is consistent with a sudden turn to the right, and such a finding can be made on the balance of probabilities.
FINDINGS
The insurer has conceded that the insured failed to keep a proper lookout and therefore breached his duty of care. This is entirely appropriate in a situation where the insured driver openly admits that he did not see the claimant. Noting the photographic evidence and body worn footage depicts a clear view for from behind the insured, there can be no doubt that the insured breached his duty of care by performing a right hand turn without keeping a proper lookout.
Whilst admitting the insured failed to keep a proper lookout and is therefore liable, the insurer has alleged contributory negligence in the order of 75% and as such, maintains that the claimant is mostly at fault in respect of the accident for the purposes of the MAI Act.
Sections 3.11 and 3.28 are disentitling provisions, and as such the insurer bears the onus in establishing the assertion that the claimant is mostly at fault (see: Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909).
I consider the evidence before me as lacking in certain respects. In this regard, the insured and witnesses were not asked pertinent questions at the accident site. In particular, the insured was not asked at what point of the road his indicator was activated. He does provide an estimate in his subsequent signed statement, but of course, such evidence is given at a much later date, and in the context of a claim and I therefore place less weight on such evidence as compared to a version given at the scene of the accident.
Furthermore, the insured consistently states that he was in the area of the accident scene to look for cattle that were out on the road. At one point in the body worn footage he refers to this fact by stating words to the following effect: “Not fast at all no, because I remember that first batch because that’s why I was up here because there was a cow on the road and I was looking for her so the first batch they went around me and I thought that was the last of the bikes.”
This confirms that the insured was focussed on locating the cow, and the words “…so the first batch went around me” suggests that he was travelling at a slower speed as a result. The fact that he states that the he thought the bikes that went around him were the last of the bikes, suggest that his focus was largely taken up attempting to locate the cow rather than his fellow road users. In this regard, and as noted above, the evidence demonstrates a clear line of sight behind him.
The insured was not questioned by police, nor does he cover the issue in his signed statement, about whether the cow was located and his intentions finding her and how that related to his driving at the relevant time.
Pivotal to the question of whether the claimant is contributorily negligent is the issue of whether the insured driver activated his indicator prior to making the right turn, and if so, whether the indicator was activated at a reasonable point prior to making the turn.
The claimant in his claim form, suggests that an indicator was not activated. Later, in his signed statement, he suggests that the indicator was activated. This leads me to conclude that the claimant’s evidence is somewhat unreliable given the inconsistency on a crucial point. I therefore have approached his evidence with a reasonable level of caution.
The claimant’s girlfriend, Ms Pringle, who was a pillion passenger, also suggests in her own claim form that the insured performed the turn without indicating. I have also approached this evidence with some caution noting that I am without a fulsome statement from Mr Pringle.
Evidence as to whether the indicator was activated is provided by two third-party witnesses, Mr Armstrong and Mr Osman. The insurer submits little weight should be given to this evidence as the witnesses were questioned by police together and Mr Osman “adopted” the story of Mr Armstrong. The fact that the police interviewed these witnesses together is certainly less than ideal. However, I reject the suggestion that Mr Osman adopted the story of Mr Armstrong. In fact, his story differed on the crucial issue of whether an indicator was activated. Accordingly, I have formed the opinion that although some caution is warranted in considering this evidence, I am satisfied that the evidence provided by the witnesses is credible, particularly on the issue of the indicator given that the evidence is fundamentally different.
I accept the evidence of Mr Osman that the insured driver did in fact activate his indicator. The question remains, however, as to whether the indicator was activated for a reasonable amount of time prior to the insured performing the right hand turn manoeuvre.
As noted above, I invited submissions from the parties as to whether the body worn evidence of the insured driver, that the accident occurred “exactly there” in the context of the vehicle coming to rest beyond the gate, is consistent with a sudden right hand turn. After careful consideration, I accept the insurer’s submission that a finding as to the point of impact on the road cannot be made on the balance of probabilities. In this regard, it is seemingly evident from the photograph evidence that the collision was a high velocity incident and it cannot be reasonably discounted that the impact itself may have caused a change of directory of the insured vehicle.
However, on the balance of probabilities I do find that the insured driver activated his indicator at a late stage, and only momentarily prior to executing the right hand turn. This evidence is consistent with the evidence of Mr Osman, which I accept, and is also overall consistent with the evidence of Mr Armstrong who stated that he did not notice an indicator which suggests that leading up to the accident occurring the indicator was not activated.
Whilst the insurer relies on the suggestion that the insured did in fact have an indicator activated and that the indicator was mistaken by the claimant as an invitation to overtake, I do not accept on the balance of probabilities that this is the case. Essentially, the suggestion is merely conjecture. It is a hypothetical scenario suggested by the insured driver at the scene of the accident and was subsequently adopted by the police.
I also accept the evidence of Mr Osman and Mr Armstrong that there was a sudden braking by the insured driver momentarily prior to him making the right hand turn.
I do consider that the fact that the insured driver has given clear evidence that his purpose for being on the stretch of road was to search for a wayward cow is suggestive that his attention was somewhat diverted from his fellow road users. This is evident from his admission that he thought the first lot of passing motorbikes were the last of the group, and therefore, he has failed to keep a proper lookout of his surroundings. It is also consistent with the evidence from the witnesses and the claimant himself that the insured was travelling at a relatively slow pace.
Noting I have applied some caution to the consideration of the claimant’s evidence, I cannot be satisfied that the insured driver did not pull “slightly” to the left prior to the accident as suggested by the claimant, on the balance of probabilities.
However, I have made a finding that the insured driver was travelling at pace below the speed limit, and that his attention was diverted to locating a wayward cow. Furthermore, the photographic and body worn vision evidence demonstrates the subject gate was effectively camouflaged by long grass. Whilst the evidence is not such that I can provide a definitive reason as to why the insured activated his indicator at a late stage, such findings and evidence is consistent with, rather than inconsistent with, such finding.
Based on my findings above, the claimant:
(a) came over a crest and had clear uninterrupted vision of the roadway ahead.
(b) The insured driver was travelling at a relatively slow speed.
(c) Several of his fellow bike riders had already overtaken the insured driver.
(d) There was no immediately discernible driveways or gates to the side of the road.
In such circumstances, it is reasonable that the claimant would consider and then perform an overtaking manoeuvre of the insured vehicle. Based on my findings above, it was not until the claimant was in the midst of his overtaking manoeuvre, either having reached the side of the vehicle or very close to it, that the insured driver braked and activated his indicator before performing a right hand turn.
In such circumstances, I do not consider there was any reasonable steps that the claimant could have taken to avoid the collision. Accordingly, I make no finding of contributory negligence. Whilst an allegation of excessive speed is made, there is no evidence that the claimant was travelling at an excessive speed. And given that he was suddenly confronted with a turning vehicle without reasonable warning, I do not consider that he could have reasonably steer, brake or control his motorbike in the “agony of the moment” such that he could have avoided the accident.
Whilst the insurer has relied on the case of Guihot, the facts are fundamentally divergent to the subject matter. In this regard, in the case of Guihot the defendant driver was situated a number of cars ahead of the claimant. Further, a finding was made that the defendant vehicle’s indicator was activated for a period prior to the U-turn manoeuvre. Furthermore, the Court’s reasons refer to driveways on the roadway, which demonstrates it was not a country road without marked driveways, such as the situation in the current case.
The particular facts of the subject matter are also different to the facts presented in the remaining two cases relied upon by the insurer.
It follows, therefore, that the claimant is not wholly or mostly at fault in respect of the accident.
COSTS
As a regulated miscellaneous claims assessment matter under Schedule 1 cls 3(2)(d)&(e) of the Motor Accident Injuries Regulation 2017 (Regulation), legal costs may be awarded.
Schedule 1 cl 3(1) of the Regulation provides that the maximum costs for legal services provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units.
The current value of a monetary unit is $119.96 which translates to a maximum amount of $1,919 per dispute.
The dispute involves both a dispute under Schedule 2 cls 3(d)&(e) of the MAI Act. In addition, the application form lists a dispute as to the reduction for contributory negligence. Under Schedule 2 cl 3(g) this amounts to an additional dispute.
Noting that the matter did not involve an assessment hearing, and was assessed on the papers, I do not consider that the maximum amount for three disputes is warranted. Whilst I did request a second set of submissions, the issue was limited. However, the matter did involve the viewing of several hours of body worn footage.
In the circumstances, and exercising my judgment and experience, I award costs in the amount of $3,500 plus GST.
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