Scott v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 152
•21 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Scott v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 152 |
| Claimant: | Ameen Scott |
| insurer: | Insurance Australia Limited t/as NRMA Insurance for the Nominal Defendant |
| Member: | Gary Victor Patterson |
| DATE OF DECISION: | 21 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment matter; dispute about wholly at fault, mostly at fault and contributory negligence; claimant was riding his motorcycle in the middle lane of three lanes on a clearway; the claimant pulled into lane one to pass a semi-trailer on the left when he struck the unknown tow truck that was parked/stopped in lane one contrary to the relevant road rule; claimant travelling about 70 kilometres per hour at the time of impact; insurer conceded it was not illegal for the claimant to overtake on his left in a freeway; no dispute that the unidentified vehicle was illegally parked and there was a breach of duty of care on the part of the unidentified driver; Held – claimant not wholly or mostly at fault; special costs order. |
| determinations made: | CERTIFICATE OF DETERMINATION Issued in accordance with s 7.36(4) of the Motor Accident Injuries Act2017 Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter The findings of this assessment are as follows: 1. For the purposes of s 3.11 of the Motor Accident Injuries Act2017 (the Act), the motor accident was not caused wholly or mostly by the fault of Ameen Scott. 2. For the purposes of s 3.28 of the Act, the motor accident was not caused wholly or mostly by the fault of Ameen Scott. |
REASONS FOR DECISION
Miscellaneous Claims Assessment matter issued in accordance with s 7.36(5) of the Motor Accident Injuries Act2017
BACKGROUND
This assessment relates to a dispute about a miscellaneous claims assessment matter.
Miscellaneous claims assessment matters are defined by s 7.1 of the Act as matter declared by Schedule 2 of the Act to be a miscellaneous claims assessment matter.
Miscellaneous claims assessment matters arise for determination under Part 7, subdivision 3, s 7.42 of the Act.
Part 10, Division 10.2, r 96 of the Personal Injury Commission Rules governs miscellaneous claims assessment matters.
The dispute between the parties is in relation to whether or not the motor accident was caused by the fault of another person or mostly by the fault of the claimant. They are miscellaneous claims assessment matters as prescribed by sub-paragraphs (d) and (e) of s 3 of Schedule 2 to the Act.
INTRODUCTION
Ameen Scott (the claimant) was riding his motorcycle northerly on the Princes Highway in Blakehurst on 10 August 2021 in the middle lane; lane two of three lanes. The clearway was in effect at that time. The claimant pulled into lane one to pass a semi-trailer on the left when he struck the unknown tow truck that was parked/stopped in lane one contrary to the relevant Road Rule.
As the driver of the unknown vehicle has not been identified, nor interviewed, the Nominal Defendant responded to the claim and engaged NRMA (the insurer) to manage the claim.
The insurer concedes that it was not illegal for the claimant to overtake on his left in a freeway. The insurer also concedes there is no issue as to the claimant’s credit.
The claimant has returned to work. There is a claim for backpay. He was a barista at the time of the motor accident earning a few hundred dollars each week. He requires further treatment.
There is no dispute that the unidentified vehicle was illegally parked contrary to a clearway sign and that there was a breach of duty of care on the part of the unidentified driver. There is an issue as to whether that breach was causative of the motor accident. The dispute is about whether the claimant was wholly or mostly at fault.
ON THE PAPERS
Both parties are content for me to determine this miscellaneous claim assessment matter on the papers.
Section 52(3) of the Personal Injury Commission Act2020 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 and the parties’ acceptance that the dispute can be determined on the basis of those documents, I am satisfied that I have sufficient information to proceed on the papers. It follows this is the appropriate course in the circumstances.
FACTUAL BACKGROUND
The claimant says that he was riding his motorcycle to work on the day of the accident. His motorcycle was in good condition. He was travelling in the middle lane at a speed of 65km per hour within the speed limit. Weather and road conditions were fine and dry.
He was travelling behind a semi-trailer with a large container on the back. The semi-trailer was about five metres in front of the claimant and travelling at the same speed. The size of the semi-trailer obscured his view of the roadway in front of it and to the sides. He decided to merge into lane one and overtake the semi-trailer on its left. He could not see the number one north bound lane in front of the semi-trailer due to the size of the container and truck.
The claimant says that he was familiar with that section of the roadway and did not expect there to be any parked vehicles in the number one lane at that time as clearway conditions were in effect. As he pulled into the number one lane, he saw a vehicle travelling north in that lane behind him, at a similar speed. That confirmed his opinion that it was safe to change lanes and overtake the semi-trailer in the near side in the number one lane.
As he changed into the number one lane and accelerated slightly, he looked to the front and saw a parked tow truck with a flatbed, about six metres in front of him. He had not seen this tow truck prior to changing lanes. The claimant was then travelling about 70km per hour and did not have time to brake. He saw a driveway just behind the near side of the rear of the tow truck and steered towards it to avoid colliding with the rear of the tow truck. As his motorcycle past the near rear side corner of the flatbed of the tow truck, his right arm impacted with the rear near side corner of the flatbed. The claimant was knocked off his motorcycle and landed on the footpath in front of the truck. His motorcycle came to rest in lane one in front of the tow truck after impacting a telegraph pole.
The tow truck was unattended at the time of the accident. Its driver was standing at the entrance of an adjacent Fish and Chips shop. He witnessed the accident as did the proprietor of the shop. CCTV footage of the accident was provided to the claimant by the shop proprietor. It does not identify the tow truck or its driver.
DOCUMENTS CONSIDERED
I have considered all of the documents uploaded to the Portal and designated A1 to A4. Those documents include the Police Report, a factual investigation undertaken by Barringtons for the insurer, the claimant’s statement, a statement by Constable Blake Duggan, colour photographs and footage of the accident scene. I have considered the following additional documents:
(a) submissions dated 19 January 2023 by Hall & Wilcox Lawyers for the insurer;
(b) claimant’s further submissions (undated) in response to the insurer’s submissions, and
(c) submissions in response dated 6 March 2023 by Hall & Wilcox Lawyers.
Pages 59 to 63 of Bundle A3 contain the insurer’s initial declinature for statutory benefits after 26 weeks. The reasons given were that the claimant was most at fault in the accident and/or sustained a minor injury.
Pages 64 to 71 of the same Bundle constitute the insurer’s internal review which confirmed the declinature for statutory benefits after 26 weeks, from the date of the accident, because the claimant was considered to be wholly at fault in the motor accident. There was no allegation of contributory negligence. There was no reference to minor injury. Presumably because the claimant sustained a fractured wrist.
CLAIMANT’S SUBMISSIONS
The claimant rejects the insurer’s allegations of fault and submits that the unknown driver is wholly at fault for:
(a) parking in an unsafe location;
(b) breaching r 176 of the Road Rules 2014, and
(c) failing to exercise reasonable care to avoid causing injury to other road users.
There is no dispute that the tow truck was parked in the clearway at the time of the accident.
The claimant refers to s 5B of the Civil Liability Act2002 which deals with the general principles of duty of care. It is submitted for the claimant that the precautions which are to be taken against an identified risk of harm are limited to the precautions which “in the circumstances a reasonable person in the person’s position would have taken”. I take it that the claimant cites s 5B(1)(c) in support of the proposition that there was no breach of duty of care on his part.
The claimant also refers to s 5R of the Civil Liability Act which deals with contributory negligence. Both parties have made submissions in relation to contributory negligence. It is of relevance to the extent that I must be satisfied that the claimant was more than 61% responsible for the accident if I am to find that he was mostly at fault. See s 3.28(2) of the MAI Act.
The claimant does not refer to any of the other provisions contained within Part 1A of the Civil Liability Act dealing with negligence and particularly causation.
In paragraph 3.13 of the claimant’s submission:
“illegally parking a vehicle in a clearway lane without any hazard lights activated carries with it a high probability that significant harm would occur and that the burden of preventing such harm was minimal.”
In paragraph 3.14 of the claimant’s liability submissions,
“the insured’s conduct clearly resulted in a foreseeable risk of danger to other road users and that such risk was not insignificant.”
The claimant submits there is no express rule prohibiting a vehicle overtaking another vehicle in the left lane on a multi-lane road in New South Wales. That is conceded by the insurer. The claimant admits he was conscious of the risk posed of following a truck without the ability to see any obstacles in front of the truck that might cause it to stop without warning. The claimant says he was alive to that risk and took steps to position himself to the side of the truck to improve his visibility of oncoming obstacles. The claimant chose to merge into the left lane as the right lane was not clear of traffic. He concedes he did not have a clear view of what was ahead of him in the left lane.
The claimant emphasises the fact that the insured tow truck was illegally parked on the clearway, which blocked the flow of traffic. In the claimant’s submission, illegally parking in a clearway in peak hour traffic poses a significant risk of an accident occurring resulting in serious harm. The claimant submits that the illegally parked truck in the clearway was not incidental to the accident but was the direct cause of it.
The claimant relies upon r 176 of the Road Rules 2014 which prohibits a driver stopping on a clearway, except in two instances, neither of which apply in this case. There is no need for me to recite r 176 as it is not in dispute that the unidentified driver was in breach of it.
The claimant cites two decisions of the Personal Injury Commission which it says are similar in their facts to the present case. Those cases are Blakeney v QBE Insurance (Australia) Limited [2022] NSWPIC 148 and Mitchell v AAI Limited t/as GIO [2022] NSWPIC 306. The insurer does not deal with those cases other than to say that “neither are particularly relevant to this claim”.
THE INSURER’S SUBMISSIONS
The insurer submits that the claimant is mostly at fault for failing to keep a proper look out, failing to change lane safely, travelling at an excessive speed that prevented him from stopping behind the unidentified stationary tow truck in a clearway.
The insurer submits that no reasonable driver would move into a lane where he cannot see what is in the lane at the prescribed speed limit for the road. The insurer notes the reality that vehicles do stop illegally in clearways, no stopping lanes and parked illegally. The insurer submits that the presence of the tow truck in the clearway was incidental to the accident, rather than the cause of it. The insurer submits the claimant’s moving into a lane when he had no vision of what lay ahead was the cause of the accident.
The insurer submits that all drivers have to exercise caution in driving when they cannot see what lies in front of them. The insurer says that the claimant ought not to have carried out the manoeuvre that he did. The insurer observes that the claimant had the number three lane available to him when he carried out the overtaking manoeuvre “which would have been a far safer decision”. The insurer says that “overtaking on the left, while not illegal on a multi-lane highway, is riskier given the likelihood of parked vehicles (there was a seafood shop opened)”.
The insurer finally submits that, if the claimant is not wholly at fault, his contribution exceeds 61%, given his decision to move into a lane where he could not see at the speed limit.
DETERMINATION
Having regard to the evidence given by the claimant in his statement, to the effect that he could not see the number one north bound lane in front of the semi-trailer due to the size of the container and truck, at the time that he chose to move into the number one north bound lane, I am satisfied that he failed to take proper care for his own safety. I accept the insurer’s submission that it was open to the claimant to overtake the semi-trailer in the right hand number three lane. In the claimant’s further submissions (paragraph 2.4), it is said that “the claimant chose to merge into the left lane as the right lane was not clear of traffic”. I can find no evidence to that effect in the claimant’s statement.
The insurer admits that the unidentified driver of the tow truck breached his duty of care to other users of the roadway, including the claimant, by illegally parking his vehicle in lane one, contrary to the clearway conditions and Road Rule 176, upon which the claimant relies.
Having considered all of the evidence and the parties’ submissions, I am satisfied that both parties made a material contribution to the motor accident. Whether the traditional “but for” test is applied, or the common sense test adopted by the High Court in March v Stramare [1991] 171 CLR 506 is preferred, the result is the same. Both parties breached their respective duties of care. Nothing in Part 1A of the Civil Liability Act2002 persuades me otherwise.
I am satisfied that both parties materially contributed to the occurrence of the motor accident in ways that were more than negligible.
I resist drawing any adverse inference against the unidentified driver arising from the fact that he apparently departed the scene without giving his contact details to anyone.
I note in passing that the facts of the present case bear some similarity to the facts in March v Stramare which found both parties to be at fault.
The insurer bears the onus of proving that the claimant should bear more than 61% responsibility for the motor accident. There is no evidence from the unidentified driver. The claimant’s evidence, of itself, does not persuade me that his capability exceeds that threshold.
Although it is not necessary for me to make a specific finding on the extent of the claimant’s contributory negligence, I think that something like equal responsibility could be an appropriate finding, in the circumstances of this case. That opinion is merely indicative. It is not meant to be in any way determinative of the extent of the claimant’s responsibility for the motor accident.
For these reasons, I am not satisfied that the claimant is relevantly wholly or mostly at fault for the motor accident.
COSTS
The claimant seeks legal costs in excess of those provided for in the Regulations. As indexed, the regulated fee is presently $1,800.48. The claimant says that exceptional circumstances exist that justify the allowance of a greater amount. The claimant seeks $6,723.73 inclusive of GST as itemised in a tax invoice dated 24 March.
The insurer submits that “this is a straight-forward liability dispute with little factual dispute and is not exceptional in any way”. It says there is no basis to make a special cost order. It denies that there are exceptional circumstances in this case.
The relevant disputes concerned wholly or mostly at fault and contributory negligence. I consider there are exceptional circumstances justifying a special cost order. That is because of the nature of the liability dispute, the insurer’s contention that the claimant was wholly or mostly at fault and the absence of the unknown driver, which would have required the claimant’s legal representative to undertake some additional work.
I have had regard to the recent decision of Member Cassidy in Bentley v QBE Insurance (Australia) Limited [2023] NSWPIC 85.
I allow $5,500.00 plus GST for the claimant’s costs.
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