Rehman v Allianz Australia Insurance Ltd
[2022] NSWPIC 171
•12 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Rehman v Allianz Australia Insurance Ltd [2022] NSWPIC 171 |
| CLAIMANT: | Atiq Rehman |
| INSURER: | Allianz Australia Insurance Ltd |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 12 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims assessment; whether the motor accident was caused mostly or wholly by the fault of the claimant; sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; claimant’s taxi cab struck the rear of insured vehicle which was parked in kerb-side lane of two-lane street; claimant’s vision impaired by morning light at daybreak; claimant failed to take reasonable precautions to avoid presence of parked vehicles; Held– claimant wholly at fault. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.11 the motor accident was caused wholly by the fault of the claimant. 2. For the purposes of section 3.28 the motor accident was caused wholly by the fault of the claimant 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,881 inclusive of GST. |
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 (e) of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant, Atiq Rehman, 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 or mostly at fault for the motor accident.
BACKGROUND
The claimant is a 34-year-old man who suffered injuries in a motor accident on 28 March 2020.
At about 5.45am on that day, the claimant was driving his taxi cab in the left-hand or kerb-side lane along Forest Road Penshurst towards Peakhurst. At a point on the roadway near or at the front of the property known as 609 Forest Road, the left-front side of his taxi cab collided with the rear right-hand side of the insured vehicle. The insured vehicle was parked in the kerb-side lane.
The claimant claims to have injured his neck and back. On 24 June 2020, he made an application to the insurer for payment of statutory benefits. The insurer accepted liability for payment of those benefits for the first 26 weeks, to 26 September 2020.
On 22 July 2020, the insurer denied liability for payment of any further benefits beyond 26 September 2020 on the basis that the claimant was wholly at fault for the motor accident.
On 28 September 2020, the claimant sought an internal review of the insurer’s decision. On 21 October 2020, the insurer issued a determination affirming its original decision.
On 23 October 2020, the claimant made an application to the Dispute Resolution Service (DRS) seeking a review of the insurer’s review decision.
The application is now before me for determination.
JURISDICTION OF THE PERSONAL INJURY COMMISSION (COMMISSION)
The Commission was established on 1 March 2021 and the DRS was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
I am a Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident clause 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines continue to apply.
DETERMINATION ON THE PAPERS
At a teleconference I conducted on 29 October 2021, the parties agreed that I could proceed to determine the proceedings based on the documents before me.
On 24 February 2022, I conducted a further teleconference with the parties to discuss some issues that arose from the claimant’s evidence and to discuss whether the matter should proceed to an assessment conference, with the claimant to be questioned.
Following discussions, the claimant submitted that the matter could proceed to an assessment on the papers on the basis that he provides the Commission with a supplementary statement about the circumstances of the accident. The insurer agreed to the matter proceeding on that basis after the insurer has had an opportunity to make further submissions on the claimant’s supplementary evidence.
The Commission has since been provided with a further signed statement from the claimant dated 18 March 2022 and further submissions from the insurer, dated 1 April 2022.
I am satisfied that there is sufficient information before me to determine the proceedings without holding a formal hearing.
In making my determination, I considered the following documents:
(a) the ED Discharge Referral of Canterbury Hospital dated 28 March 2020;
(b) the Application for Personal Injury Benefits dated 24 June 2020;
(c) the certificate of fitness for work from Dr Alladin Matter, dated 24 June 2020;
(d) the Liability Notice for Benefits after 26 weeks dated 22 July 2020;
(e) the claimant’s application for internal review dated 28 September 2020;
(f) the insurer’s internal review certificate of determination and reasons dated 21 October 2020;
(g) the claimant’s statement sent as an email to his legal representative on 18 June 2021;
(h) the insurer’s submissions to the Commission dated 22 July 2021;
(i) the claimant’s submissions to the Commission dated 29 October 2021;
(j) the insurer’s further submissions to the Commission dated 15 November 2021;
(k) the claimant’s further statement dated 18 March 2022, and
(l) the insurer’s further submissions dated 1 April 2022.
THE EVIDENCE
The following facts are uncontroversial:
(a) the weather was fine, and the road surface was dry;
(b) there were two marked lanes of traffic (the kerb-side lane or left-hand lane and the right-hand lane) on Forest Road in the direction of the claimant’s travel;
(c) the insured vehicle was legally parked in the kerb-side lane, and
(d) there were no other vehicles involved in the accident.
The claimant’s evidence
In his application for statutory benefits dated 24 June 2020, the claimant described the circumstances of the motor accident as follows:
“I was driving on left hand lane on Forest Road, North West side, I saw a little bent [sic] there was a car parked and I misjudged because of early morning light and hit my car front left side to the right backside of the other car.”
In a statement sent as an email to his legal representative on 18 June 2021, the claimant stated:
“As I mentioned in my statement the car was parked around the bent [sic] if it was a straight road I could have seen it well before hand. At the time I came from city and I was travelling (city to Mortdale) it was complete night light as I dropped customer and I came towards Forest road which was facing east.
And because I worked the whole night and sudden light to my eye effected [sic] me to judge situation properly as you know you get reflections into your eyes as something is moving in front of you after seeing light.
I am fully aware of the situation as I hit the parked car it is my fault according to the insurance company but the police did not issue me any fine. They took my details and also ask me question, if I was at complete fault they must have issued me a fine for negligence [sic] driving but they understood the situation and did not issue me any fine.”
In his further statement on 18 March 2022, the claimant said at about 5.00am, he had a customer with him in his taxi cab and travelling from the city to Mortdale. It was still dark at that time. After dropping the customer at Mortdale about 5.45am, he was travelling in a north easterly direction along Forest Road Penshurst. By that time, it was “day break with morning light in the sky” but he had his car lights on. He said:
“As I manouvred [sic] the car around the bend in Forest Road I had to be extra focused and look around if there was no one around the bend as I looked to the right in Forest Road the morning light hit my eye and the light made me misjudge the bend and I did not see the parked car in the bend of the road.”
Documentary records
The ED Discharge Referral of Canterbury Hospital dated 28 March 2020 records the history of the accident on the claimant’s admission, as follows:
“32 year old male presenting 3 hours most [sic] MVA
was travelling around a bend
did not notice parked car on side of the road
contact made passenger
no air bag deployment
wearing seatbelt
travelling approx. 45-50km
was feeling confusion afterwards
having headaches, neck pain and lumbar pain radiating down right leg to level of the knee, no head strike.”
In a certificate of fitness for work provided by Dr Alladin Matter on 24 June 2020, Dr Matter recorded the circumstances of the accident as follows:
“while driving in left hand lane hit into parked car with facial back and chest pain and confusion the leg was hit on the bottom of dashboard”
THE INSURER’S SUBMISSIONS
The insurer’s submissions may be summarised as follows:
(a) The claimant has failed to keep a proper lookout.
(b) The claimant “failed to judge the situation properly” resulting in him colliding with a parked vehicle.
(c) The claimant failed to maintain proper control of his vehicle so as to avoid the presence of a legally parked vehicle on the roadway.
(d) The claimant failed to brake or slow down when approaching the legally parked vehicle.
(e) The claimant failed to drive in an appropriate manner according to the conditions, including any hazard created by lighting conditions.
(f) There is no evidence that the claimant slowed his vehicle when navigating the bend or attempted to avoid the accident when perceiving the risk, which a reasonable person ought to have done in circumstances where their view was obscured by light.
THE CLAIMANT’S SUBMISSIONS
The claimant’s submissions may be summarised as follows:
(a) The claimant’s evidence is that he was blinded by a light in the night sky and then he collided into a parked car. The accident was therefore a no-fault accident.
(b) The claimant relies upon the provisions of sections 5.1 to 5.8 of the MAI Act. The accident is a blameless accident on the basis that the claimant was not negligent in driving his motor vehicle and that there was no other negligence on the part of the driver or any other person.
(c) There was no act or omission of the claimant that was causative of the accident that would deny him of any entitlement to recover damages.
(d) The accident was caused by the avoidable collision by a ray of light in the night sky. The onus falls upon the insurer to prove that the accident was not blameless.
CONSIDERATION
The relevant legislation
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 for the motor accident.
On that basis, the claimant received payment of statutory benefits from the insurer for a period of 26 weeks.
Section 3.11(1)(a) and section 3.28 (1)(a) of the MAI Act provide that an injured person is not entitled to weekly payments of statutory benefits and payments for treatment and care expenses more than 26 weeks after the motor accident if the accident was caused wholly or mostly by the fault of the injured person.
Section 3.11(2) and section 3.28 (2) of the MAI Act provide that 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 was greater than 61%.
In this case, the insurer’s decision to decline liability for payments of statutory benefits beyond the first 26 weeks was made pursuant to section 3.11(1)(a) and section 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 2002 (NSW) (CLA), negligence is defined as meaning failure to exercise reasonable care and skill.
Pursuant to s 3B(2)(a) of the CLA, Divisions 1-4 and 8 of Part 1A (Negligence) apply to motor accidents.
Discussion
It is the claimant’s submission that the motor accident was a no-fault accident and as such, he relies on the provisions of sections 5.1 to 5.8 of the MAI Act. He says that the accident is a blameless accident because he was not negligent in the driving of his motor vehicle.
Having regard to the whole of the evidence, I am of the view that it is appropriate to firstly consider whether he was at fault for the motor accident.
The claimant accepts that, while driving his taxi cab in the kerb-side lane, he collided with the rear of the insured vehicle which was parked in that lane at or near the front of 609 Forest Road. There is no suggestion that the insured vehicle was illegally parked in that lane at that time.
He says that, as he manoeuvred his vehicle around a bend, morning light hit his eye, he misjudged the bend and did not see the parked vehicle in the bend of the roadway.
In my view, the occurrence of morning light at daybreak is an ordinary challenge faced by all road users. It is foreseeable to a driver travelling in the kerb-side lane of a two-lane suburban street that there would be parked vehicles in that lane of travel. A reasonable driver would take the necessary precautions to observe and avoid driving into such vehicles. One such precaution would be to travel in the other lane. There is no allegation by the claimant that he could not travel in the other lane, and no explanation of why he remained in the kerb-side lane as he approached a bend in the road. He put himself in the position of causing the collision with the parked vehicle.
The claimant’s evidence was that he was working the whole night. It is reasonable to assume that he may have been fatigued and this affected his concentration, so that he was taken by surprise by morning light at daybreak. The left-front side of his taxi cab collided with the rear right-hand-side of the insured vehicle, indicating that he tried to avoid the collision by moving towards the centre lane, but by then it was too late.
As the majority in the High Court observed in Manley v Alexander [2005] HCA 79; 80 ALJR 413, [12]:
“…the reasonable care that a driver must exercise when driving a vehicle on the road requires 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.”
In the circumstances of this case, I find that the claimant did not take the necessary precautions that a reasonably prudent and careful driver would have taken when faced with similar circumstances. On the balance of probabilities, I find that the claimant was wholly at fault for the motor accident.
The claimant submitted that the motor accident was a no-fault accident within the definitions of Part 5 of the MAI Act. Section 5.1 of the MAI Act defines a no-fault motor accident as one not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and caused by the fault of any other person.
As I have found the claimant to be wholly at fault for the motor accident, it follows that it cannot be a no-fault accident. In the circumstances, it is not necessary for me to consider that issue.
COSTS
The claimant’s application was unsuccessful in this application.
Success is not a prerequisite to the claimant recovering regulated costs from the insurer.
This is a miscellaneous claims assessment matter and pursuant to clause 3(1) of Part 1, Schedule 1 of the Motor Accident Injuries Regulation 2017 (NSW) (the Regulation), the maximum costs for legal services provided to a claimant in connection with an assessment under Division 7.6 of the MAI Act involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units. That currently equates to $1,710 plus GST.
In this matter, there were two disputes submitted for assessment under Schedule 2, clauses 3 (d) and (e) of the MAI Act. During the assessment, the claimant sought to invoke the jurisdiction of the Commission to consider a third dispute, under clause 3 (g1) about whether for the purposes of Part 5, the motor accident was a no-fault motor accident. As it turned out, it was not necessary for me to consider that issue.
Potentially, regulated costs for three disputes payable at the maximum rate would equate to $5,130 plus GST. However, I am not satisfied that the reasonable and necessary legal costs of the claimant in this matter should be allowed in the maximum amount. I propose to allow $855 plus GST for each of the two disputes considered, making a total of $1,710 plus GST, as the claimant’s reasonable and necessary costs recoverable from the insurer.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
For the purposes of section 3.11 of the MAI Act, the motor accident was caused wholly by the fault of the claimant.
For the purposes of section 3.28 of the MAI Act, the motor accident was caused wholly by the fault of the claimant.
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Regulation is $1,881 inclusive of GST.
Member Maurice Castagnet
Motor Accidents Division
Personal Injury Commission
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