Patel v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 254
•27 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Patel v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 254 |
| CLAIMANT: | Bhaveshkumar Patel |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 27 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant; sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; where two residential streets intersect at an almost perpendicular right angle corner; where the claimant’s scooter was making a left-hand turn and the insured vehicle was making a right-hand turn; where both vehicles arrived at the corner at the same time; Held– claimant not wholly or mostly at fault. |
| DETERMINATIONS MADE: | 1. For the purposes of sections 3.11 and 3.28 the motor accident was not caused wholly or mostly by the fault of the claimant. 2. The effective date of this decision is 8 April 2021. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
INTRODUCTION
These proceedings concern a Miscellaneous Claim assessment under Schedule 2, clauses (3)(d) and 3(e) of the Motor Accident Injuries Act2017 (the MAI Act).
The claimant, Bhaveshkumar Patel, seeks a review of the insurer’s decision made under sections 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 37-year-old man who suffered injuries in a motor accident on 8 October 2020, when his motor scooter collided with the insured’s vehicle at the intersection of Girra Road and Killarney Avenue, Blacktown.
On 15 October 2020, the claimant made an application with the insurer for payment of statutory benefits.
On 26 October 2020, the insurer accepted liability for payment of those benefits up to 26 weeks.
On 18 January 2021, the insurer notified the claimant that it declined liability for payment of statutory benefits after 26 weeks on the basis that he was wholly at fault for the accident.
On 19 January 2021, the claimant sought an internal review of the insurer’s decision.
On 22 January 2021, the insurer issued a determination affirming its original decision.
On 22 April 2021, the claimant commenced these proceedings in the Personal Injury Commission (the Commission) to resolve the dispute.
The insurer lodged a reply on 16 September 2021.
The proceedings are now before me for determination.
DOCUMENTS CONSIDERED
In making my decision, I have considered all the documents provided by the parties and these include:
(a) a Discharge Summary from Blacktown Hospital dated 8 October 2020;
(b) a “Statement and Diagram” made by the claimant on 8 October 2020;
(c) a Certificate of Fitness dated 14 October 2020;
(d) the Application for Personal Injury Benefits dated 15 October 2020;
(e) the Liability Notice for Benefits up to 26 weeks dated 26 October 2020;
(f) the investigation report of Barringtons dated 12 November 2020 which includes a statement from the claimant dated 24 October 2020, signed on 27 October 2020, a transcript of a record of interview with the insured driver, Muhammad Awais Afzal on 24 October 2020, photographs of the insured vehicle taken by the insured driver at the scene of the accident, a google map diagram from the claimant depicting his path of travel and various maps of the location and scene of the accident drawn by Andrew Forster of Barringtons, on 4 November 2020;
(g) An “Incident Description” form from the insured driver to NRMA Insurance dated 20 November 2020;
(h) the Liability Notice for Benefits after 26 weeks dated 18 January 2021;
(i) the claimant’s application for internal review dated 19 January 2021;
(j) the insurer’s review decision dated 22 January 2021, and
(k) the insurer’s submissions to the Commission dated 16 September 2021.
LEGISLATION
In making my decision, I have considered the following legislation and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017 (the Regulation);
· The Motor Accident Guidelines, Version 8 (the Guidelines), and
· the Civil Liability Act 2002 (the Civil Liability Act).
EVIDENCE
The following facts are uncontroversial:
(a) The motor accident occurred at about 10.20am on 8 October 2020 at the intersection of Girra Road and Killarney Avenue, Blacktown.
(b) Girra Road turns into Killarney Avenue at an almost perpendicular right angle.
(c) The claimant was riding his scooter on Killarney Avenue intending to make a left-hand turn into Girra Road. The insured vehicle was travelling on Girra Road intending to make a right-hand turn into Killarney Avenue.
(d) The claimant was riding a 2006 150cc Bolwell scooter and the insured driver was driving a 2004 Honda Jazz hatchback.
(e) The speed limit was 50kmph on both Girra Road and Killarney Avenue.
(f) The weather was fine, and the road surface was dry.
(g) There is no suggestion that either the claimant or the insured driver was affected by alcohol or drugs at the relevant time.
The claimant’s evidence
The claimant has described the circumstances of the motor accident on several occasions.
In its reply, the insurer provided a document headed ‘Statement and Diagram’ that is page 2 of a document signed by the claimant on 8 October 2020. Page 1 of that document was not provided to the Commission nor were any details of the source of the document. It appears that the statement was made by the claimant to his property damage insurer in his claim for the damage to his scooter. On page 2, the claimant describes the circumstances of the accident as follows:
“I was going at work [sic] from my home to turning left onto Girra Road from Killarney Avenue, Blacktown and hit by oncoming car as I turned the corner and car hit my bike and I was [sic] fall down on the road and injured”.
In his application for personal injury benefits dated 15 October 2020, the claimant described the circumstances of the accident in the following terms:
“Turning left onto Girra Road and hit by an oncoming car as I turned the corner”.
On 24 February 2020, the claimant was interviewed by Andrew Forster of Barringtons investigators, at the request of the insurer. The claimant’s evidence in that interview may relevantly be summarised as follows:
(a) He was only travelling between 10 to kmph as he approached Girra Road. He was on his side of the road and was closer to the gutter on his left than the centre of the road.
(b) He put his left indicator on as he approached Girra Road.
(c) As he got to the bend where the two streets intersect, the insured vehicle coming from the opposite direction along Girra Road arrived at the intersection at exactly the same time as he did. The insured vehicle was on his side of the road when it came to the intersection.
(d) As he saw the insured vehicle coming towards him on his side of the road, he applied both handbrakes. As he did, his motor scooter slowed down to about 10kmph.
(e) He was just starting to make the left-hand turn when the front of the insured vehicle collided with the front of his scooter. He believed that this was closer to the driver-side front bumper of the insured vehicle.
(f) As soon as the insured vehicle hit his scooter he fell over on his left side.
The claimant gave oral evidence at the assessment conference. His evidence may relevantly be summarised as follows:
(a) As he approached the right-angle corner from Killarney Avenue into Girra Road, he had his left indicator on and he was travelling at about 25kmph.
(b) As he turned the corner, he saw the insured vehicle approaching in the middle of the road. He got scared that the vehicle would hit him if he did not put his brakes on. He started to brake and as he did, his scooter started skidding.
(c) There was a vehicle parked on his side of the road on Girra Road, just at the corner. As he made his turn, he was riding his scooter close to that parked vehicle and on his side of the roadway.
(d) Before he made the turn into Girra Road, he had not noticed the parked vehicle.
(e) As he braked, his scooter skidded, he fell down on the roadway. At the time, he was not aware that his scooter had then hit the front bumper of the insured vehicle.
(f) As he turned the corner, he saw the parked vehicle on his left side and the insured vehicle in the middle of the road at the same time.
(g) When questioned by Mr Hunt whether he ‘panicked’, the claimant said that he had to apply his brakes because the insured vehicle was very close to him and he was scared. He applied the brakes to save himself.
(h) Mr Hunt suggested to the claimant that if he had approached the corner at a lower speed, he would have had more time to avoid the accident. The claimant said as he turned the corner, there was not enough room. He had no time to see the parked vehicle on his left and the insured vehicle in the middle of the roadway until after he made his turn.
The insured’s evidence
In the Incident Description form dated 20 November 2020, the insured driver described the circumstances of the accident as follows:
“I was going from Girra Rd and he was coming from Killarney Avenue. Then at the
corner he suddenly saw me so he pushed his break (sic) and fell down and he hit me while he was skidding.”
On 24 February 2020, the insured driver was interviewed by Andrew Forster of Barringtons investigators. His evidence from the recorded interview may relevantly be summarised as follows:
(a) He saw the claimant fall down and the claimant’s scooter started skidding to the front of his vehicle and the scooter hit his vehicle.
(b) He was coming from Girra Road intending to turn right into Killarney Avenue. The claimant was coming from Killarney Avenue towards Girra Road.
(c) He was just a few metres from the turn and he was about to turn into Killarney Avenue. The claimant suddenly saw him ‘in front like ah, oncoming’ and he ‘pushed his brakes’ and he fell down. He was “like ah, watching” the claimant.
(d) He saw the claimant push his brakes on the handle of the scooter.
(e) From the time that he saw the claimant push his brakes, the claimant’s scooter had skidded about five metres to hit his vehicle.
(f) When the claimant started skidding, the insured driver started to push his brakes to try and stop his car and “ah, then we both like, ah, he hit me”.
(g) When he first saw the claimant pushed his brakes, he was going at “thirty or something” kmph. But when he was going to turn, “he was not at this speed”. When the two vehicles hit, they could have been doing, “ten, twenty”.
(h) There was a car parked on his right-hand side on Girra Road near the turn.
The insured driver gave oral evidence at the assessment conference. His evidence may relevantly be summarised as follows:
(a) He was about to make his turn from Girra Road into Killarney Avenue, so he slowed to about 20kmph.
(b) He spotted the scooter as ‘we made the turn’. He saw the claimant push his brakes and he pushed his brakes to stop his car.
(c) He stayed on his side of the road all the time.
(d) When questioned about parked vehicles in the vicinity of the site of the accident, the insured driver said that there were no parked vehicles to his left as he approached the corner and that he cannot confirm whether there were any parked vehicles to his right.
(e) The claimant believes that the scratch marks shown in photograph 5 is where the claimant fell onto the road after he started to brake.
The factual investigation report of Barringtons
In his investigation report of 12 November 2020, Mr Forster stated that he attended the scene of the accident on 24 October 2020.
Mr Forster reported that on that day, he measured the width of both Girra Road and Killarney Avenue to be eight metres wide.
Mr Forster reported that on that day, he has spoken to the residents of numbers 1, 3, 5 and 7 Killarney Avenue. He reported that none of the residents witnessed the collision.
Mr Forster reported that the resident of number 3 Killarney Avenue, Ms Terri Saloway heard a bang and came out of her residence onto the street. Ms Saloway then observed a blue Ford Territory parked on the corner of Girra Road opposite her residence. A few minutes after the collision, she saw her neighbour drive the vehicle away.
Mr Forster reported that he did not observe any line marking in the centre of the road on either Girra Road or Killarney Avenue.
On 4 November 2020, Mr Forster drew a map of the location of the accident showing two road signs depicting a “right bend” on Girra Road in the direction of travel of the insured driver. The first was a few metres before the corner with Killarney Avenue and the second was right on the corner.
Other evidence
The discharge summary from Blacktown Hospital dated 8 October 2020 records the motor accident as - “Low speed motor accident, hit by other car ~ 20 kph”.
The Certificate of Fitness dated 14 October 2020 also records the accident as “low speed 20 km/h.”
THE INSURER’S SUBMISSIONS
The insurer’s submissions may be summarised as follows:
(a) It is accepted that both drivers owe other road users a duty of care.
(b) The version of events provided by the claimant and the insurer driver, are inconsistent.
(c) The version provided by the claimant is that whilst he was turning left into Girra Road, the insured driver’s vehicle was on his side of the road and collided with his scooter causing him to fall off and onto the roadway.
(d) The version provided by the insured driver was that the claimant, whilst turning into Kirra Road, lost control of his scooter causing it to fall and slide/skid towards the insured vehicle, colliding with the front right bumper.
(e) The insurer submits that it is highly likely that the claimant lost control of his scooter at the intersection of Killarney Avenue and Girra Road after sudden braking which caused his scooter to fall and slide/skid towards the insured driver’s vehicle and collide with the front right bumper/bonnet.
(f) The insurer submits that the most likely scenario consistent with the available evidence is that the claimant, had to move more into the centre of the road to go around the parked vehicle, and that moving towards the centre line of the road, and seeing the insured driver’s vehicle turning right into Killarney Avenue caused him to suddenly brake and lose control of his scooter.
(g) According to Vairy v Wyong Shire Council [2005] HCA 34, 59 ALJR 492, the duty of the driver of a motor vehicle to users of the road is to take reasonable care for their safety having regard to all the circumstances of the case.
(h) The reasonable care that a driver must exercise when driving a vehicle on the road requires, as the majority observed in Manley v Alexander [2005] HCA 79 at [12]:
“…that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events”.
(i) The insurer says that the claimant breached his duty of care by failing to safely manoeuvre, and control, his vehicle to the prevailing road conditions whilst turning left into Girra Road. By suddenly braking, the claimant lost control of his scooter whereby it fell and slid/skidded towards and collided with, the insured vehicle which was turning right into Killarney Avenue.
(j) A reasonably prudent driver in the position of the claimant ought to have been able to safely manoeuvre, and control his vehicle, and bring it to a stop in a safe manner and avoid the accident that ensued.
(k) For the reasons outlined, and based on the available evidence, the insurer submits that the accident was caused wholly by the fault of the claimant and that consequently, the claimant has no entitlement to weekly payments or treatment expenses pursuant to sections 3.11 and 3.28 of the MAI Act.
THE RELEVANT LEGISLATION AND LEGAL PRINCIPLES
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 sections 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 sections 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 section 5 of the Civil Liability Act, negligence is defined as meaning failure to exercise reasonable care and skill.
Pursuant to section 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, section 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.
DISCUSSION
Approaching the corner
In his interview with Mr Forster, the claimant said that his scooter and the insured vehicle arrived at the corner of Girra Road and Killarney Avenue at exactly the same time. He was just starting to make his left-hand turn.
In oral evidence, the claimant said as he turned the corner, he saw a parked vehicle on his left side and the insured vehicle in the middle of the road at the same time.
In oral evidence, the claimant said there was not enough room. He had no time to see the parked vehicle on his left and the insured vehicle in the middle of the roadway after he made his turn.
In the Incident Description form, the insured driver said that at the corner, the claimant “suddenly saw him”. In his interview with Mr Forster, the insured driver said he was just a few metres from the turn when the claimant “suddenly saw him”. He was “watching” the claimant. In oral evidence, the insured driver said he spotted the scooter “as we made the turn” and he saw the claimant push his (hand) brakes. This evidence suggests that the insured driver had commenced to make his right-hand turn when he saw the claimant.
The position of the vehicles at the corner
In his interview with Mr Forster, the claimant said when he made his left-hand turn, he was on his side of the road and was closer to the gutter on his left than the centre of the road. In oral evidence, he said that there was a parked vehicle at the corner on Girra Road on his left and as he made his turn, he was riding his scooter close to the parked vehicle.
In his interview with Mr Forster, the insured driver said that he was just a few metres from the turn, and he was about to make his right-hand turn into Killarney Avenue. In his oral evidence, he said that he stayed on his side of the road all the time. He cannot confirm whether there was a parked vehicle to his right as he approached the corner to turn.
Speed on approach to the corner
In his interview with Mr Forster, the claimant said that he was travelling 10-20kmph as he approached the corner. In oral evidence, he said that he was travelling at about 25kmph.
In his interview with Mr Forster, the insured driver said when he first saw the claimant, he was travelling at about “thirty or something” kmph. As he was about to turn, he was not travelling at this speed. When the two vehicles hit, they could have been travelling at 10-20kmph.
In oral evidence, the insured driver said as he was about to make his right-hand turn, he slowed down to about 20kmph.
The Discharge Summary and the Certificate of Fitness both record the claimant reporting that the accident occurred at a speed of about 20kmph.
The collision
In his interview with Mr Forster, the claimant said that when he saw the insured vehicle coming towards him on his side of the road, he applied both handbrakes and as soon as the insured vehicle hit his scooter, he fell over on his left side.
In his interview with Mr Forster, the insured driver said when the claimant “suddenly saw him”, the claimant started to push his hand brakes, the scooter then skidded to the front of his vehicle, the claimant fell down and his scooter skidded to the front of his vehicle and the scooter then hit his vehicle. The claimant’s oral evidence was consistent with this evidence.
In oral evidence, the claimant said when he saw the insured vehicle approaching in the middle of the road, he started to brake, his scooter started skidding and he fell down on the roadway. At the time, he was not aware that his scooter had then hit the front bumper of the insured vehicle.
Factual findings
On both the claimant’s and the insured driver’s evidence, I find that they arrived at the corner of Girra Road and Killarney Avenue at the same time. I find that at that time, the claimant had made his left-hand turn into Girra Road and that the insured driver had commenced to make his right-hand turn from Girra Road into Killarney Avenue.
In making that finding, I was not assisted by photograph 5[1] referred to by the insured driver in his oral evidence. The photograph does not depict the respective vehicles and their position at the corner. My finding is consistent with the scene diagram drawn by the claimant on 24 October 2020 and signed on 27 October 2020[2] and the scene diagram drawn by the insured driver and signed on 27 October 2020.[3]
[1] Page 101 of the insurer’s reply.
[2] Page 126 of the insurer’s reply.
[3] Page 143 of the insurer’s reply.
I find, on the balance of probabilities, that the claimant approached the corner of Girra Road and Killarney Avenue at about 25kmph and had slowed down to about 20kmph as he made his left-hand turn into Girra Road.
I find, on the balance of probabilities, that the insured driver had approached the corner at about 30kmph and had slowed down to about 20kmph as he commenced to make his right-hand turn into Killarney Avenue.
The insurer submits that it is highly likely that the claimant lost control of his scooter at the corner of Girra Road and Killarney Avenue because of his sudden braking which caused his scooter to fall and slide/skid towards the insured driver’s vehicle and collide with the front right bumper/bonnet of the insured vehicle.
The insurer submits that the most likely scenario consistent with the available evidence is that the claimant, had to move more into the centre of the road to go around the parked vehicle, and that moving towards the centre line of the road, and seeing the insured driver’s vehicle turning right into Killarney Avenue caused him to suddenly brake and lose control of his scooter.
Even if I were to accept these submissions, I do not accept that it establishes fault on the part of the claimant.
The claimant’s evidence is that he applied his brakes as soon as he saw the danger in the insured vehicle approaching him. The claimant said that he rode his scooter close to the parked vehicle as he made his left-hand turn.
For his part, the insured driver was approaching a sharp right-hand corner with two warning signs of a “right bend” at a speed of 20kmph as he was about to make a right-hand turn.
I consider that when approaching such a corner as a prudent driver, the insured driver’s attention should have been directed towards observing the parked vehicle on his right and to considering what traffic might approach the corner from behind the parked vehicle.
While both the claimant and the insured claimed to remain on their respective sides of the road, there was no centre line and this can only be a matter of judgment and impression.
The claimant was negotiating a tight corner at a slow speed and his attention was properly focussed on staying close to the parked vehicle as he came around the corner. It is likely that the claimant moved towards the centre of the road but his scooter was only about one metre wide making it unlikely that he crossed over to the other side of the road.
The claimant described being “confronted” by the insured’s vehicle on the corner. I find it more likely than not that the insured’s vehicle was on the wrong side of the road at the time of the accident.
When confronted by the insured’s vehicle, the claimant braked to avoid a collision. His scooter slid in the turn and the claimant fell to the ground.
While it was a difficult situation for both the claimant and the insured driver, the insured driver had a better opportunity to observe the road ahead and to avoid the accident because he was negotiating a wider turn.
There was nothing in the circumstances of the accident to suggest that the claimant was behaving recklessly or inattentively or that he failed to exercise due care while negotiating the corner. He approached the corner and made his left hand-turn at a slow speed and stayed close to the parked vehicle.
I find that the claimant exercised reasonable care in the circumstances.
For the purposes of sections 3.11 and 3.28 of the MAI Act, I find that the claimant was not at fault in the motor accident.
COSTS
As the claimant was self-represented in these proceedings, the question of costs does not arise.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
For the purposes of sections 3.11 and 3.28 of the MAI Act, the claimant was not wholly or mostly at fault in the motor accident.
The decision takes effect from: 8 April 2021.
Maurice Castagnet
Member (Motor Accidents Division)
Personal Injury Commission
0
2
4