Santisteban v Allianz Australia Insurance Limited
[2025] NSWPIC 14
•6 January 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Santisteban v Allianz Australia Insurance Limited [2025] NSWPIC 14 |
| CLAIMANT: | Javier Santisteban |
| INSURER: | Allianz |
| MEMBER: | Gary Victor Patterson |
| DATE OF DECISION: | 6 January 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; Sections 3.11(1) and 3.28(1) miscellaneous claims assessment; where the accident caused wholly by the fault of the claimant; where claimant’s motor scooter and insured motorcycle came into contact as they travelled abreast in the same lane; differing versions of what occurred causing the vehicles to come into contact; claimant lost control of his motor scooter and crashed onto the surface of the motorway; circumstances of loss of control disputed; claimant sustained various injury and was transported by ambulance to hospital; insured rider may have obtained details of only independent witness; no statement obtained from that witness; claimant and insured rider each maintain that the other was wholly at fault; insurer concedes that it bears the onus of proving that the claimant was wholly at fault; insurer failed to discharge that onus; assessment on the papers; Held – sections 3.11(1) and 3.28(1) are concerned with causation of the accident that involve fault; the accident was not caused wholly by the fault of the claimant. |
| DETERMINATIONS MADE: | CERTIFICATE FOR MISCELLANEOUS CLAIM Issued under Division 7.6 Subdivision of the Motor Accident Injuries Act2017 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017, the motor accident on 23 August 203 was not caused wholly by the fault of the claimant. 2. For the purpoes of s 3.28 of the Motor Accident Injuries Act 2017, the motor accident was not caused wholly by the fault of the claimant. 3. The insurer is to pay the claimant’s regulated costs. |
STATEMENT OF REASONS
INTRODUCTION
This determination relates to whether the motor accident was caused wholly by the fault of Javier Santisteban (the claimant).
This miscellaneous claim dispute has been referred for assessment under Part 7, Division 7.6, Subdivision 3 and Schedule 2, cl 3(e) of the Motor Accident Injuries Act 2017 (the Act).
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the PIC Act) provides:
“(3) if the Commission is satisfied that sufficient information has been supplied to it in connection with the proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to procedural direction PIC 2, the documents that are before me, including the parties’ submissions that the dispute can be determined on the basis of those documents, I am satisfied that I had sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
BACKGROUND
The claimant is a 59-year-old male who was working on a full-time basis as a Data Engineer at the time of the accident.
On 23 August 2023, the claimant was riding his registered Piaggio Beverley 350 motor scooter from his home to his place of work at Barangaroo. He was wearing all appropriate protective clothing and equipment. The claimant was riding on the Gore Hill Freeway from Lane Cove. He became involved in altercation with the rider of the insured Triumph Bonneville Bebber motorcycle near where that rider emerged from the Lane Cover tunnel exit. Both riders proceeded in the T2 lane for a short distance. Both riders were in the same lane 1, the insured rider to the claimant’s right. The two motorcycles came into contact, in circumstances that are disputed. As a result, the claimant lost control of his motor scooter and fell, sliding along the road when he released his scooter.
As a result of the accident, the claimant suffered multiple injuries, including a fracture to his right distal clavicle. The claimant was taken to Royal North Shore Hospital by ambulance and underwent an open reduction and internal fixation of the right distal clavicle and a coracoclavicular ligament reconstruction.
By its liability notice dated 27 March 2024, the insurer denied liability for statutory benefits for 52 weeks from the date of the accident, on the basis that the claimant is alleged to be wholly at fault in the accident.
The claimant requested an internal review of the insurer’s decision. By its Certificate of Determination dated 17 July 2024, the insurer affirmed the declinature.
The claimant rejects the insurer’s allegation of contributory negligence and submits that the insured is wholly at-fault for causing the collision by overtaking the claimant in the same lane which led to the collision.
The parties agree that the issue for determination is whether the claimant is wholly at-fault of which I must be satisfied to the Briginshaw[1] standard.
[1] Briginshaw-v-Briginshaw [1938] 60 CLR 336
LEGAL FRAMEWORK
The claimant is not entitled to statutory benefits for more than 52 weeks after the motor accident if the motor accident was caused wholly or mostly by his fault: ss 3.11(1)(a) and 3.28(1)(a) of the Act. I proceed on the basis that, for the purposes of ss 3.11 and 3.28, “fault” means a failure to exercise reasonable care and skill.
The driver of a motor vehicle/rider of a motorcycle is required to take reasonable care having regard to all the circumstances.[2] The duty is always the same: to conform to the legal standard of reasonable conduct in the light of the apparent risk. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger.[3]
[2] Vairy v Wyong Shire Council [2005] HCA 62 per McHugh J at [26].
[3] Manly v Alexander [2005] HCA 79 per Gummow Kirby and Hayne JJ at [11].
It is for the insurer to lead evidence which not only establishes the basis of its declinature of the claimed statutory benefits, but also persuades the Personal Injury Commission (Commission) that on all of the evidence, it can be concluded that the accident was caused wholly (or mostly) by the fault of the claimant.[4]
[4] Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909 at [45], [55] and [67].
DOCUMENTS CONSIDERED
The claimant relied upon the following documents which I have considered:
(a) claimant’s submissions dated 17 September 2024;
(b) photographs schedule of the accident scene and relevant maps;
(c) Allianz Liability Notice dated 27 March 2024 – declining statutory benefits beyond 52 weeks from the date of the accident on the basis that Allianz found the claimant to be wholly at fault;
(d) Allianz’s Certificate of Determination dated 17 July 2024 – confirming the original decision that the claimant was wholly at-fault for the subject accident;
(e) clinical notes of Royal North Shore Hospital dated 23 August 2023;
(f) police report dated 23 September 2023;
(g) Procare reports and enclosures dated 12 November 2023 and 27 November 2023, and
(h) claimant’s completed questionnaire (Procare) date 15 July 2023.
The insurer relied upon the following documents which I have considered:
R2 insurer’s reply submissions dated 15 October 2024;
R3 Application for Personal Injury Benefits dated 29 August 2023;
R4 Certificate of Capacity dated 29 August 2023;
R5 consultation notes of Dr Abni Garg dated 2 November 2023;
R6 referral of Dr Peter Lam dated 30 April 2024;
R7 letter from Allianz re liability dated 22 September 2023;
R8 RTW and Recovery Assessment Report dated 3 November 2023;
R9 Vocational Assessment Report dated 7 February 2024;
R10 Labour Market Analysis Report dated 11 March 2024;
R11 Allianz Compulsory Third Party (CTP) monthly progress report dated 20 March 2024;
R12 clinical records of Lane Cove General Practice – various dates;
R13 hospital records of Royal North Shore Hospital – various dates;
R14 email correspondence between Greenlight and Allianz Insurance, and
R15 clinical records of Sarif Physiotherapy.
It is curious that the Procare reports and enclosures, as well as the claimant’s completed Procare questionnaire, are included in the claimant’s bundle, but not in the insurer’s bundle.
EVIDENCE
The COPS Event document contains the following description:
“About 08:20 on Wednesday, 23 August 2023, RIDER 2 was travelling in lane one of three on motorcycle, Piaggio 350 bearing NSW registration DJJ40 along Gore Hill Freeway when he observed RIDER 1 travelling an excessive speed on a Triumph bearing NSW registration LLE 03. As RIDER 2 was travelling along the Gore Hill Freeway, peak hour traffic commenced, and RIDER 2 caught up to RIDER 1. RIDER 2 said to RIDER 1: ‘slow down’ before riding off. Whilst passing the Hampden Road underpass, RIDER 1 has allegedly come within close proximity to RIDER 2 and clipped RIDER 2 right handle bar causing him to fall off and sustain injury.
I note that RIDER 2 designates the claimant and RIDER 1 designates the insured.”
The insured gave a statement on 12 November 2023 which reads in part:
“28. At around 8:35am, I was riding to work. I exited Lane Cove tunnel at the Artarmon Pacific Highway exit, to take the 12 lane on the M1/Gore Hill Freeway, towards the City.
29. I merged into the T2 lane (M1/Gore Hill left lane).
30. I was riding in lane 1 of 3.
31. Behind me was a scooter rider, who I now know to be Mr Santisteban. I have no knowledge of the person and I have no dealings and relationship with him.
32. I assume he did not approve of someone merging ahead of him. I continued riding on when Mr Santisteban tried to ride on the inside of my lane and attempted to overtake me.
33. As I looked at him, he was shouting and I noticed his helmet strap was not clasped. He then dropped back behind me, where he was previously riding.
34. At this juncture of the M1 Motorway, there are three dedicated eastbound traffic lanes and three dedicated westbound traffic lanes.
35. This location and Google map reference…. Is the M1 Motorway leading from the Northshore of the Sydney towards the City Centre of Sydney.
39. The speed limit on this section of the roadway is clearly marked as being 80 kilometres per hour.
40. At this time on the morning of 23 August 2023, there was a moderate to heavy flow of traffic on the roadway.
41. I continued to ride on the M1 for around 100 metres at about 70 kilometres per hour. Mr Santisteban then overtook me on my left side, in the same lane I was in, within one foot of my bike.
42. The scooter rider tried to pass me again on my left side, in the same lane I was in, when there was a car in front of me.
43. As the scooter rider illegally passed me (again), the right side of his handle bar clipped my left handle bar, at which point he immediately lost control of the scooter.
44. The scooter rider crashed and slid the scooter on its right hand side. This was at roughly 50 kilometres per hour. His helmet also immediately came off as he hit the ground, as it was not clasped.
45. I stopped immediately on the side of the road and made my way quickly back to him to assist.
46. Another scooter rider had also stopped and was helping Mr Santisteban to his feet, to sit on the wall.
47. I asked if he was ok, to which he immediately started shouting, very close to my face. At that point, I thought it best to let the Police and Ambulance deal with him once they arrive at the accident scene.
48. The scooter rider wanted a physical altercation. A white Ute also stopped to help.”
The insurer’s investigator Procare interviewed the police officer in charged of the investigation, who stated the insured rider provided the following version of events:
“On 23 August 2023 about 08:35am, I was riding my bike exiting the Lane Cove Tunnell merging into the T2 lane ahead of another bike. We continued for 15 metres, the other ….. rider came along side of me in the same lane on the left with approximately one foot of distance between us. I went along side of him, shook my head and kept riding ahead of him for about 20 to 30 metres. He came back along side of me in the same lane. This time, he clipped my left side handle bar, causing him to lose control and fall onto the right side of the bike.”
The police report confirmed that “due to the conflicting versions provided by both drivers at the scene, no independent witnesses, or footage, Police are unable to continue the investigation due to exhausting all avenues.
The following passage appears in the transcript of interview given by the claimant to Police on 26 November 2023.
“I get into the Gore Hill Freeway from Lane Cove and use the T1 bus lane and was riding under 60 kilometres an hour when the other motorcycle came past me at very high-speed shaking my bike. Because there was peak hour traffic, I caught up with him and we stopped and I said to him ‘slowdown’ and then drove off and the rider caught up to me. It was very close within a metre range and his mirror hit my right handle bar causing my bike to shake and I slowed down but fell off.
He caught up to me and hit my handlebar, I could not have touched his handlebar because my motorcycle is higher.”
The claimant described the circumstances of the accident to the insurer’s investigator, Procare, as follows:
“This incident resulted from a previous event when a Triumph motorcycle rider overtook me from the left side at nearly 90 kilometres per hour on the merging lane (Longueville Road and the exist from Lane Cove Tunnel with a 60-kilometre speed limit).
Within two minutes, traffic in the T2 lane slowed to about 5 kilometres an hour and stopped, and I caught up to the Triumph rider, stopping on his left side. I cautioned him to be more careful next time. He responded with an unhappy gesture, but I focussed on the road.
We both followed a public bus, and as traffic increased to 40 kilometres per hour, we rode slowly in the same lane. I waited for the Triumph rider to go first, but when no decision was made, I moved forward on the left side of the T2 lane while he stayed on the right. Suddenly, at around 40 to 50 kilometres an hour, he veered towards me, with his left foot support coming within 30 centimetres of my scooter. Unable to move left due to the freeway wall, I slowed down (my scooter has ABS brakes), but our handle bars touched, causing my front wheel to shake.
I lost control and fell, sliding on the road where I let go of my scooter, rolling towards the wall to avoid incoming vehicles. A Bespa scooter rider helped me up, noticing I couldn’t use my right arm properly. The Triumph rider initially didn’t stop but eventually walked over. He refused to provide his licence, but the Bespa rider managed to get it from his pocket for a photo. I took a photo of his licence and his motorcycle…. The Triumph rider also took the Bespa rider’s details”.
There is a clear conflict between the two versions as to who was passing whom in the same lane one and whose motorcycle initiated the contact between the two motorcycles. There was an independent witness whose details were not obtained and who has not given a statement. A third motorcycle rider stopped to assist. He did not witness the incident but may have persuaded that the insured rider to provide his details to the claimant.
SUBMISSIONS
Claimant’s submissions
The claimant observes that the insured rider omitted, in his statement to police, anything said by the claimant whilst being “alongside of him”, including the request for the insured to slow down and to be more careful. The insured rider otherwise does not suggest that the claimant attempted to overtake him on the initial encounter when he came alongside.
The claimant submits that his account of the accident ought to be preferred to the insured’s version of events. The claimant submits that, on the evidence, it was the insured who attempted to overtake the claimant from the right side of the lane, which was the sole cause of the accident, for which the insured should be found wholly at fault.
In the claimant’s submission, there are a number of issues that arise when examining the insured’s version, that put his evidence into question. They are as follows:
(a) in both his statement to the insurer’s investigator and to police, the insured omitted details from the dangerous overtaking manoeuvre at speed at the junction of where the lane merged prior to the accident location. In the claimant’s submission, this is a clear attempt to conceal contextual details surrounding the prior accident circumstances, in an attempt to mask any wrong doing in his conduct.
(b) The claimant notes that the insured rider estimates that the distance between the first and second overtaking manoeuvres was some 35 to 45 metres and submits that is implausible, given that the accident happened around 1.2 kilometres from where the insured merged in from the claimant initially. The claimant highlights the insured’s version to police is inconsistent with his own later statement.
(c) The claimant denies that he attempted to pass the insured rider on the left side of the lane. The claimant says he was stationary behind traffic and beside the insured rider when the initial remonstration occurred. The claimant says that he proceeded in front of the insured rider, when the traffic began to move, and that the insured rider was not in front of him. That is inconsistent with the insured rider’s account to police that he was riding in front of the claimant before the collision.
(d) The claimant submits that an inference should be drawn from the failure of the insured driver to obtain the contact details of the unknown person who was riding behind the claimant and who likely witnessed the accident in its entirety. The claimant notes that the insured rider obtained contact details of the Hilux driver who did not witness the accident. The claimant submits that it is more probable that the insured did obtain the details of the unknown lay witness but chose to conceal his identity once the insured discovered that the evidence of the witness contradicted his own version of events. The claimant says that he witnessed the insured rider taking down details from the unknown lay witness.
(e) The claimant notes that the insured rider had accumulated six demerit points on his licence.
(f) The claimant denies providing an inconsistent history of the accident to Royal North Shore Hospital staff and says that, to the extent that the hospital records are contrary to his version, the hospital staff misunderstood the information he gave to them.
Insurer’s submissions
In relation to the Post-Accident Treating Evidence, the insurer notes as follows:
(a) In an ambulance report dated 23 August 2023, the following was noted (A5):
“Driving to work on motorway on a Bespa/scooter. Not sure exactly what happened, but had some part of scooter clipped by another vehicle which caused him to wobble to the edge of the road where wet leaves caused the scooter to slip out from under him. Things was going about 10 to 20 kilometres per hour. Landed hard on rider’s [sic] side (emphasis added).”
(b) In a Certificate of Capacity dated 29 August 2023 (R4), it was noted that:
“Passing motorbike coming from behind accidentally came within 30 centimetres of patient bike and caused loss of bike control.”
(c) Consultation notes recorded by Dr Avni Garg, GP, on 2 November 2023 noted (R5):
“Javier was involved in a MVA on 23 August, where his scooter was clipped by a bike and slipped out from under him.”
(d) Consultation notes recorded by Dr Peter Lam, orthopaedic foot and ankle surgeon, on 30 April 2024 (R6) recorded:
“In August 2023, Javier was involved in an accident where… he lost control of his scooter and fell on his right side.”
The insurer submits it is therefore apparent that the claimant has provided different versions of events to his treatment providers.
The insurer then summarises the Insured’s Versions of Events and the Police’s Version of Events which previously have been summarised. Under the heading Damage to the Claimant and Insured’s vehicle, the insurer notes that the insured rider said there was no damage to his motorcycle which, it is submitted, is consistent with the insured’s version of events, rather than the claimant’s, as damage to the mirror would have been expected if the claimant’s version was correct. The insurer notes the extensive damage to the claimant’s scooter and submits there is no objective evidence that the claimant’s handle bar collided with the insured’s mirror/left handle bar, as the claimant suggested to Police.
The insurer concedes that the onus of establishing, on the balance of probabilities, facts said to demonstrate that the motor accident was caused wholly by the fault of the claimant, rests with the insurer. The insurer submits that the claimant does hold at least some onus of improving the relevant facts, which have not been made out in this matter, so it is submitted. The insurer submits that the evidence plainly meets the standard of proof to refute the claimant’s version of events for the purposes of s 3.11 and s 3.28 of the Act.
For the reasons outlined below, the insurer submits that the evidence shows the claimant was wholly at fault for the accident, under s 3.11 and s 3.28(1)(a) of the Act:
(a)the claimant alleged that the road was “partially wet” (A8) whereas the photographs annexed to the claimant’s submissions demonstrate that the lane where the accident occurred was dry, consistent with the insured’s version of event;
(b)contrary to the claimant’s allegation that the insured veered towards his scooter, which caused their handle bars to make contact, the insured sustained no damage to his motorcycle, which is consistent with the insured’s version of events that the claimant attempted to overtake his motorcycle;
(c)the claimant’s versions of events to his treatment providers are inconsistent, and
(d)the insurer submits that the insured’s version should be preferred as the totality of the objective evidence is in favour of the insured’s version, noting the various inconsistencies in the claimant’s version outlined above.
The insurer submits that the claimant’s colliding with the insured motorcycle caused the claimant to lose control of his scooter which resulted in his scooter “wobbling to the edge of the road where wet leaves caused the scooter to slip out from under him.”. The insurer submits that, in those circumstances, the claimant is at fault for the subject accident.
The insurer then cites various High Court and Supreme Court decisions bearing upon the standard of care required of a driver to keep a proper lookout and to maintain proper control of one’s vehicle. It is not necessary to deal with those authorities in detail as the law is well-settled and is not disputed by the claimant. The insurer then gives particulars of its submission that the claimant breached his duty of care in the circumstances of the accident.
The insurer submits that the totality of the evidence supports the finding that the claimant failed to alter his manner of driving reasonably and sufficiently when travelling in close proximity of another rider on the road and could have avoided clipping the insured vehicle, then losing control of his scooter. It is therefore submitted that the claimant reasonably have avoided the accident if not for his own actions.
Those submissions are made in support of the contention that the claimant was wholly at fault for the accident.
CONSIDERATION
I have considered all of the documentary evidence and the parties’ written submissions. I note the insurer’s concession that it bears the onus of proving that the claimant was wholly (or mostly) at fault for the subject accident. I note also that the insurer did not require the claimant for questioning and was content for the dispute to be decided on the papers.
I do not accept the insurer’s submission that the lack of damage to the insured rider’s motorcycle, particularly its left handle bar and mirror, supports the insurer’s case. The claimant’s evidence is that his motor scooter was higher than the insured’s motorcycle which was not refuted by the insured rider in his evidence.
Although there are inherent forensic difficulties in determining a matter solely on the papers, it seems to me that the claimant’s evidence has the ring of truth about it. I accept that the evidence of the insured rider is less detailed and appears to contain some inconsistencies in relation to what he apparently told, or relevantly didn’t tell, the police.
I do not accept the insurer’s submission that the claimant provided different versions of events to his treatment providers.
Whilst it may be that the claimant was partially responsible for the accident, that is not something that I am required to decide.
Having considered all of the evidence, and the partes’ submissions, I am not persuaded that the insurer has discharged its onus of proving that the claimant was wholly (or mostly) at fault.
COSTS
The claimant initially sought legal costs in excess of those provided in the Regulations on the basis that there were “exceptional circumstances” to justify a discretionary costs order. The claimant subsequently modified his position on the basis that the claim was determined on the papers. The insurer will pay the claimant’s regulated costs.
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