Potts v QBE Insurance (Australia) Limited
[2023] NSWPIC 563
•25 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Potts v QBE Insurance (Australia) Limited [2023] NSWPIC 563 |
| CLAIMANT: | Anthony Potts |
| INSURER: | QBE |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 25 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims dispute as to whether the claimant is wholly or mostly at fault for the purposes of sections 3.11 and 3.28; claimant self-represented; single vehicle accident; claimant a rider of a motorcycle in Hornsby Heights when the vehicle toppled and the claimant fell to the roadway; claimant assumes hit debris on the roadway and thinks it was gravel based on prior observations; claimant submits that the conditions were a significant factor to the accident; he does not consider himself at fault because driving in a careful manner; Held – the claimant wholly at fault for the accident; no evidence of speeding or acting recklessly, however, on evidence accident occurred due to him failing to adequately control his vehicle; it is the responsibility of the claimant to observe any potential hazard on the roadway and take appropriate steps to avoid same. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act2017 1. For the purposes of s 3.11 the motor accident was not caused by the fault of another person. 2. For the purposes of s 3.28 the motor accident was caused wholly by the fault of the injured person. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $0. |
STATEMENT OF REASONS
INTRODUCTION
Mr Anthony Potts (the claimant) is a 66-year-old male who suffered injury as a result of a motor accident that occurred on 26 March 2023. The motor accident is a single vehicle accident. The claimant was the rider of a motorcycle in Hornsby Heights NSW, when it toppled and the claimant fell onto the roadway.
The matter involves a miscellaneous claims dispute as to whether the claimant is wholly or mostly at fault pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act).
The claimant subsequently lodged an Application for Personal Injury Benefits (claim form) with the insurer of his motorcycle.
Statutory benefits were initially paid to the claimant, however, by way of notice dated 27 July 2023 the insurer denied ongoing liability for statutory benefits beyond 26 weeks. The reason for the denial was the insurer’s decision that the claimant was wholly or mostly at fault for the accident.
An internal review was requested, and the original decision was affirmed on
16 August 2023.
The claimant subsequently lodged an application with the Personal Injury Commission (Commission) and the matter has been allocated to me for determination. It is noted that the matter has been incorrectly recorded in the Commission portal as a Merit Review matter. It is in fact, instead, a Miscellaneous Claims Assessment matter.
I held one preliminary conference with the parties and it was agreed that it was appropriate that the matter be determined on the papers. The claimant is unrepresented and I provided him with the opportunity to make oral submissions. I also noted that he was able to contact me at any time through the Commission staff if he had anything further to add before I issued my determination.
It was noted at the preliminary conference that I did not have relevant information that was provided to the insurer. That included a photograph of the accident scene and an email to the insurer from the claimant. That material was subsequently provided to me.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and the reply and all additional material provided by the parties.
LEGISLATIVE FRAMEWORK
Section 3.11 of the Motor Accident Injuries Act2017 (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 26 weeks after the motor accident concerned if-
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
Section 3.28 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 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.”
Pursuant to Schedule 2, cl (3)(d) and (e) of the MAI Act, disputes 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.
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.
CIRCUMSTANCES OF THE ACCIDENT AND SUMMARY OF EVIDENCE
Claim form dated 4 May 2023
The claimant provided a description of the accident as follows: “turning from Montview Parade and the motorbike slipped on loose gravel causing me to fall off and receive the injury.”
A diagram is provided by the claimant that suggests the insured vehicle moved around the right side of the claimant’s vehicle and collided with the front passenger side of the car.
NSW Police report
The report records the accident being reported on 5 May 2023. It is apparent from the claimant’s statement provided to investigators (mentioned below) that the police attended the claimant’s home and obtained a version of events. Notes were put into the police notebook, but the claimant cannot recall signing anything.
The police report contains the following narration:
“…DR1 was riding his Suzuki Dr650…along Mont view parade in Hornsby Heights.
DR1 has then slowed down to about 15kmph and has begun to turn left into the tennis court entrance way at this point some loose gravel has given away causing VEH1 to slide out and fall onto DR1’s left leg…”
Statement of claimant dated 17 May 2023
The insurer caused for investigators, Brooksight Investigations, to obtain a statement from the claimant.
The claimant explained that he has held a driver’s licence since the age of 18 and obtained a rider licence around one and a half years ago. He had owned the subject motorcycle for around one year, and was familiar with its operation as he tried to ride it every two weeks to build up his confidence.
At paragraph 29 of the statement, the claimant states:
“the incident happened on Montview Parade as I was turning left into Montview Oval. Montview Parade travels north and south. I was riding south. It’s a two way road. Its relatively flat with slight downhill gradient towards Galston Road. I think the surface of the road is in good repair. I can’t recall if on the date of the incident if there was any debris, gravel or left litter or sticks on the road surface. However, when I have been there on previous occasions after rain the gravel washed down onto the apron and onto the road itself. I have ridden on Montview Parade and turned into Montview Oval on several occasions previously without incident.”
The claimant confirms that the weather was fine and the road surface was dry when the accident occurred at around 2.30pm.
At paragraphs 33 and 34 the claimant goes on to state:
“I don’t recall there being any cars parked on the kerb to my left. I would have been around just over the width f car from the left hand kerb. I would have changed down to 1st gear and would have been going very slow, under 10km/h. I commenced to make my left turn into the driveway of Montview Oval, I was only leaning slightly to the left to make the gradual left turn as I was going very slow.
I think I was still in the turning mode, I didn’t feel anything but I lost traction and my motorcycle has suddenly fell to the left and I have fallen to left with the motorcycle and I have fallen to the ground. I’m not sure when I lost traction whether I was still on the road, or on the gutter.”
Report of Brooksight Investigations dated 18 May 2023
The report itself is largely a summary of the statement of the claimant and the circumstances of the accident. I have not taken into account any comment of the investigators and instead have limited my consideration to the photographs provided and the statement of the claimant and the sketch plan.
The sketch plan provided by the claimant depicts the claimant travelling along Montview Parade and turning into a driveway where the accident occurred.
Several photographs are provided of the subject motorcycle.
Also provided is a marked photograph of the accident site. It includes a mark indicating a path of travel along Montview Parade depicting the claimant entering a driveway to the left of travel.
The report mentions a “video drive through of scene by investigator”. That video is not before me.
SUBMISSIONS
Claimant’s submissions
The claimant’s written submissions are limited to those provided in the application form lodged with the Commission, dated 27 July 2023. They indicate that the claimant disputes the insurer’s decision and states: “I have provided statements and photographic evidence that road conditions at the time of the accident may have been a significant factor.”
At the preliminary conference I held with the parties, the claimant indicated that he did not consider himself to be at fault due to him riding in a careful manner and his motorcycle giving way was not caused by any fault or negligence of himself, but rather caused by the condition of the roadway, including the existence of gravel.
Photograph of driveway into Montview Oval and accompanying email from claimant to insurer dated 4 August 2023
The photograph does not include the Montview Parade roadway. It depicts the driveway into the oval that extends over a footpath. The footpath appears to consist of concrete, with the driveway being asphalt. The driveway itself appears to be somewhat uneven with some erosion of the asphalt to the left side exposing dirt. There is light amount of leaf matter on the driveway/footpath.
The claimant states to the insurer in the accompanying email:
“The photo shows an area where the driveway into the oval has eroded and the asphalt has broken up and travel down to the roadway. This area does correspond to the area where I would have turned into the parking area when approaching the driveway from travelling West on Montview Pde. The turn also would have lined up with entering the driveway on the left side, as expected. As well as gravel, the site appears to have significant small and medium sized twigs and branches that have been run over and produce small round pieces of wood.
These items, when encountered on the foot path, do in fact create a hazard to walking there so it would be natural to expect that this slippery/unstable condition would also be present on the road surface.”
Insurer’s submissions dated 29 August 2023
The submissions largely consist of a summary of the background of the dispute and of the evidence.
The insurer highlights that the claimant’s statement confirms that he has held a motorcycle licence for only 18 months and is still on a provisional motorcycle licence.
It is also noted, on the basis of the claimant’s statement, that the claimant is unable to confirm the presence of gravel or other debris on the roadway. It is noted that this assumption is only made by the claimant on the basis of it being there on previous occasions.
The insurer states: “the insurer submits that there is no evidence available to confirm that debris, gravel or leaf litter or sticks on the road surface contributed or been the cause of the accident.”
The insurer submits that the available evidence confirms no other driver or vehicle was involved in the accident and the claimant lost control of his vehicle.
FINDINGS AND REASONS
It is uncontroversial that the accident is a single vehicle accident. No other vehicles or person was involved in the accident.
From the evidence before me, it cannot be said that the claimant is clear as to what caused the accident. Noting the content of his statement he appears to have exercised hindsight reasoning in assuming that the accident occurred due to the presence of gravel and/or other debris on the roadway.
I note that the claimant states that he has previously noted the existence of such matter on the relevant area of the roadway.
Whilst there is certainly no evidence that the claimant was speeding and/or acting recklessly at the time of the accident, on the evidence before me, I consider the accident to have occurred due to the claimant failing to adequately control his vehicle.
It is the responsibility of the rider/driver of a motor vehicle to control the vehicle to prevailing conditions. As such, it is the responsibility of the claimant to observe any hazard or potential hazard on the roadway and take appropriate steps to avoid same. Noting the claimant was travelling at a low speed the claimant would have reasonably had the opportunity to observe the roadway and any potential hazard and take appropriate steps to avoid same.
I therefore find that the claimant was wholly at fault for the accident.
COSTS
The claimant is self-represented and I therefore award no legal costs.
CONCLUSION
For the purposes of s 3.11 the motor accident was not caused by the fault of another person.
For the purposes of s 3.28 the motor accident was caused wholly by the fault of the injured person.
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Regulation, is $0.
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