Prescott v AAI Limited t/as GIO
[2022] NSWPIC 760
•19 December 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Prescott v AAI Limited t/as GIO [2022] NSWPIC 760 |
| CLAIMANT: | Sandra Prescott |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Bridie Nolan |
| DATE OF DECISION: | 19 December 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; claimant injured in motor accident when turning at ‘T’ intersection by oncoming vehicle; clause 3(e) of Schedule 2; whether for the purposes of sections 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person; Held – claimant had the unobstructed view; she would have seen the insured vehicle at the intersection; implausible that claimant could not at any stage have seen the approach of the insured vehicle, such that her decision to turn when she did can only be plausibly explained by the fact that she did not keep a proper lookout; claimant wholly and mostly at fault. |
| DETERMINATIONS MADE: | Certificate Issued under s 7.36(4) of the Motor Accident Injuries Act2017 and cl 7.497of the Motor Accident Guidelines The findings of the assessment of this dispute are as follows: 1. For the purposes of ss 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person. 2. Effective Date: This determination takes effect on 9 February 2021. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,980 inclusive of GST. |
Reasons for Decision
Issued under s 7.36(5) of the Motor Accident Injuries Act 2017
BACKGROUND
This determination relates to: an application for determination of a miscellaneous claims assessment dispute as to whether the claimant was wholly or mostly at fault for the motor accident: Schedule 2, cl 3(e) of the Motor Accident Injuries Act 2017 (NSW) (the Act).
Sandra Prescott (the claimant) was injured in a motor vehicle accident on 9 February 2021. She is now 43 years of age.
She was unemployed at the date of the accident and not an earner for the purposes of the Act.
She was the driver of a Honda Jazz travelling east on Aberdeen Road, St Andrews in the state of New South Wales, attempting to make a right turn onto Duncansby Crescent when she collided with the insured’s vehicle travelling west on Aberdeen Road.
By letter dated 20 May 2021, the insurer denied liability for statutory benefits after 26 weeks on the basis that the motor accident was caused wholly by the fault of the claimant.
By Certificate of Determination on an Internal Review dated 5 July 2021, the insurer affirmed its original decision.
The speed limit where the motor accident occurred is 50 kmph.
The police attended the scene of the accident and took statements from the claimant. In her statement to police the claimant stated that she stopped and waited for traffic to clear before attempting to make a right turn before turning into Duncansby Crescent. She stated that she only saw the insured vehicle a split second before the collision and that it had come out of nowhere. The claimant stated that she looked all the way up to the bend where there was a blind corner.
The insured driver provided a statement to police and stated that she was driving along Aberdeen Road at 50 kmph when she saw the claimant’s vehicle stopped on her right side at Duncansby Crescent. She stated that she reached a point slightly past Duncansby Crescent when the claimant’s vehicle turned to go right into Duncansby Crescent, hitting the front of her car.
An independent witness, Jerry Connolly, saw the motor accident in its entirety and commented that he did not believe that speed was a factor, and the insured driver was travelling at a pretty reasonable speed. In an MJM Investigator’s report within the insurer’s material dated 15 February 2022, the author of that report notes that he contacted Mr Connolly on 3 February 2022. Mr Connolly stated that he did not wish to be interviewed and had provided a statement to Campbelltown police. He said that statement should be used.
The police concluded that the accident was caused by the fault of the claimant. They observed that the accident scene on Aberdeen Road has a minor grade but was not winding or twisting with blind corners. Police estimated that the view available from the intersection at Duncansby Crescent up to the bend in Aberdeen Road was at least 100 metres plus.
In a statement for the purposes of this determination, the claimant said relevantly as follows:
(a) the claimant resides on Duncansby Crescent in St Andrews;
(b) she was heading home in no rush at 11.30am;
(c) she came to a complete stop at the T-intersection of Aberdeen Road at Duncansby Crescent and had partially completed her right turn onto Duncansby Crescent when the insured vehicle, that was travelling west along Aberdeen Road, collided directly into her vehicle causing her injury;
(d) the claimant says in her statement that it is her belief that the insured was travelling at a speed in excess of 50 kmph and that she was failing to slow down on approaching the claimant’s vehicle;
(e) she said that at the time of the accident when she was commencing her turn onto Duncansby Crescent, she was doing so at the speed of about 3 to 5 kmph and at least half of her vehicle was already in the insured’s path;
(f) she said that she had an unobstructed and clear view of her surroundings including of the road ahead of her. She was in no rush and had paused and was stationary at the T-intersection for a prolonged period to ensure that it was safe to complete the turn. She had briefly checked the rear mirror to see whether there were any vehicles behind her. There were no such vehicles. She spent several seconds scanning the road in front of her to ensure there were no oncoming vehicles past the bend and the road ahead, and
(g) she maintains the insured did not take any steps to avoid the collision.
[IMAGE UNABLE TO RENDER]
Figure 1: The view east up Aberdeen Road at Duncansby Crescent
Documents considered
I have considered the documents provided in the application and the reply and any further information provided by the parties.
Submissions
Claimant’s submissions
The claimant submits that the accident was caused by the excessive speed at which the insured driver was travelling.
Further, she submits that the insured driver failed to brake for the purposes of avoiding the collision with the claimant whilst the vehicle was directly in the insured’s path. The claimant asserts that because the other driver was travelling at a speed in excess of 50 kmph without braking, the immediate impact of the collision had caused her car to complete a full spin and travel back in the direction from which she had come, over a total distance of 100 metres from the T-intersection. The force of the collision also caused her vehicle to lock whilst spinning which resulted in the claimant losing control of the steering wheel and being unable to use the braking system to cause her vehicle to stop. The claimant’s vehicle ended up travelling over a gutter and onto a nearby driveway which was raised.
Insurer’s submissions
The insurer submits that the claimant was the driver making the right-hand turn who had an obligation to keep a proper lookout for oncoming traffic and to ensure that it was safe for her to execute the turn. Its primary submission is that the claimant was at fault for the motor vehicle accident because she failed to give simultaneous attention to her direction of travel and to what was already or later become that in her vehicle’s path.
The strongest support for the insurer’s submissions is said to have come from the claimant’s own statement that she had an unobstructed view of traffic travelling west along Aberdeen Road up to the bend in the road, but only saw the insured vehicle for a fraction of a second. The insurer relies on the claimant’s concession that the distance measured by the police of 100 metres of visibility is correct. It also relies upon the concession that the claimant was able to check the traffic up to the bend of Aberdeen Road and that her view was unobstructed.
The insurer relies on the insured’s contemporaneous statement to police that she was travelling at 50 kmph.
The fact that the claimant only observed the insured vehicle for a fraction of a second, the insurer submits, makes it impossible for the claimant to be able to assess the speed at which the insured driver was travelling. The insurer submits that any challenge by the claimant to the insured driver’s state of speed is based on speculation or unsubstantiated assumptions and must be rejected by me on a proper application of rule 73 of the Personal Injury Commission Rules 2021 (PIC rules).
The insurer says that I would accept the evidence of Mr Connolly that the speed was not a factor, and this was logically probative evidence and consistent with the evidence of the insured. By contrast, the claimant’s evidence that she did not see the insured vehicle due to its speed is illogical. The corollary of this statement is that she the insured vehicle for a fraction of a second yet had an unobstructed view to the bend of Aberdeen Road. The conclusion the insurer urges upon me by virtue of these factual matters is that the insured’s vehicle must have travelled over 100 metres in a fraction of a second. If that were to be the case, then the insured driver was travelling at 360 kmph. As a simple matter of mathematics, this does not require an expert opinion.
The insurer submits that I would be sufficiently familiar with standard motor vehicles and know that it is improbable that the insured vehicle was capable of reaching a speed in excess of 300 kmph. the insurer submits that the claimant’s failure to observe the insured vehicle for more than a split second cannot be explained by the speed of the insured vehicle and therefore it must be that the claimant was failing to keep a proper lookout.
The insurer submits that the claimant’s submission with respect to the force of the collision being evidence of the speed of the insured is an unqualified opinion which on a proper application of rule 73 of the PIC rules is unacceptable.
The insurer maintains that the only plausible hypothesis is that the claimant failed to see the insured vehicle before she commenced her right-hand turn because she failed to keep a proper lookout. The insurer submits that I would find that as a reasonable driver keeping a proper lookout, the claimant ought to have known that it was not safe to make a right-hand turn in the manner that she did at the time which she did, and that therefore, she is wholly at fault for the motor vehicle accident or that her contribution was more than 61%. The insured driver had no opportunity to avoid the collision such that no fault can be attributed to the insured driver.
Reasons
I accept the insurer’s submissions that if the claimant did have the unobstructed view that she said she did, she would have seen the insured vehicle as it proceeded west down Aberdeen Road to the intersection of Duncansby Crescent. It is simply implausible that she could not at any stage have seen the approach of the insured vehicle, such that her decision to turn when she did can only be plausibly explained by the fact that she did not keep a proper lookout.
The fact that the insured driver failed to take any evasive action is suggestive of two alternatives:
(a) she failed to keep a proper lookout herself, or
(b) she had no opportunity to take evasive action.
Having had regard to the entirety of the evidence, I am persuaded that the insured’s version as to how the accident occurred is the most plausible. I accept as the most plausible the insured’s evidence given to police is that she was travelling at 50 kmph, and that she saw the claimant’s vehicle stopped at the intersection of Duncansby Crescent. As she approached the T-intersection, the claimant commenced her turn into Duncansby Crescent and collided with the front of the insured vehicle.
This version of events supports in which I have come, namely, that even if the insured had failed to keep a proper look out, there is nothing about this potential failure which contributed to the accident. It was the erratic decision of the claimant to turn when she did which meant that even if she had been keeping a proper look out there was no way that the insured driver had an opportunity to take evasive action, the claimant’s turn being so sudden.
Accordingly, I am satisfied that the motor accident was caused wholly or mostly by the fault of the injured person, viz, the claimant.
COSTS AND DISBURSEMENTS
I am satisfied that the claimant is entitled to the payment of legal costs. I allow costs in the sum of $1,980 inclusive of GST.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
a. For the purposes of ss 3.28 or 3.36 of the Act, the motor accident was caused mostly by the fault of the injured person.
b. Effective Date: this determination takes effect on 9 February 2021.
c. Legal costs: the amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,980 inclusive of GST.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
· the Act, and
· Motor Accident Injuries Regulation 2017.
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